



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kostyk, 2014 ONCA 447

DATE: 20140609

DOCKET: C55816

Weiler, Sharpe and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Kostyk

Appellant

Richard Litkowski, for the appellant

Susan Reid and Katie Doherty, for the respondent

Heard: February 6, 2014

On appeal from the conviction entered on February 25,
    2011 and the sentence imposed on April 12, 2011 by Justice Fletcher Dawson of
    the Superior Court of Justice, sitting with a jury.

R.A. Blair J.A.:

OVERVIEW

[1]

Jermaine Cameron was brutally beaten to death with a baseball bat in the
    appellants home.  The appellant and his then-girlfriend, Celynn Cantin, lived
    in the home together and, at the time of the beating, were the only other
    persons there.

[2]

The appellant and Ms. Cantin were drug addicts, and very heavy users of crack
    cocaine in particular.  Mr. Cameron was their drug dealer.

[3]

Mr. Cameron was living out of his car at the time, but was allowed to
    park in the appellants laneway and to sell drugs from that location.  The
    appellant owed him at least $180 (perhaps as high as $400) for drugs. This debt
    became the subject of much discussion at trial.

[4]

The Crown did not charge Ms. Cantin with murder, but proceeded against
    the appellant.  The appellant was convicted of second degree murder and
    sentenced to life imprisonment with a 13-year period of parole ineligibility. 
    He appeals from that conviction and, if unsuccessful, from the 13-year period
    of parole ineligibility.

[5]

For the following reasons, I would dismiss the conviction appeal, grant
    leave to appeal sentence, but dismiss the sentence appeal.

FACTS

[6]

The stories about what happened were conflicting.  This much is
    uncontested, however.

[7]

Mr. Cameron was struck at least eight times on the head with a baseball
    bat at some point during the evening of June 25, 2007.  The beating took place
    in the appellants home.

[8]

After the beating, the appellant called two of his friends, Alan
    Villeneuve and Brian Rowley, to come and help him.  Mr. Cameron  who was
    either dead or alive  was dragged out of the house, loaded into the back seat
    of his own car, and driven by the appellant to a secluded conservation area
    near Palgrave, about a 30 minute drive from the appellants home in the Holland
    Marsh area north of Toronto.  There, Mr. Camerons body was found the next
    morning, naked and abandoned in the bushes not far from his car.

[9]

Messrs. Rowley and Villeneuve rode in Villeneuves truck and accompanied
    the Cameron car on the trip.  They picked up the appellant at the site and
    returned him to his home.  Upon arriving home, the appellant took steps to
    destroy the evidence of the incident and to cover up what had happened.  These
    steps included:

(i)  Buying cleaning
    equipment and products and cleaning the house to remove the blood spatter and
    stains;

(ii)  Moving
    furniture around in the living room;

(iii)  Breaking up
    the couch with a hammer because it was crusty with the victims blood on it,
    and burning the pieces of the couch;

(iv)  Pawning a TV
    which had the victims blood spatter on it;

(v)  Washing out
    the blanket that the appellant says he used to cover the victim, and which had
    the victims blood splatter on it;

(vi)  Removing the
    appellants fingerprints from the baseball bat, and then throwing the bat,
    together with Mr. Camerons cell phones, into the canal; and

(vii)  Lying to the
    police about what had happened and encouraging Ms. Cantin to do so as well.

[10]

The
    appellant says these steps were taken to protect Ms. Cantin, but did not
    dispute that they happened.

[11]

In
    other respects, the versions of what happened varied considerably.

The Conflicting Stories of the
    Appellant and Ms. Cantin

[12]

Ms.
    Cantin testified that it was the appellant who administered the beating, while
    she was upstairs in the bathroom.  The appellant testified that it was Ms.
    Cantin who did so, while he was upstairs sleeping.  He said he retired to his
    bedroom after Ms. Cantin began to throw a tantrum because Mr. Cameron would not
    give her any crack cocaine.  Neither the appellant nor Ms. Cantin hinted that
    they were involved in the beating together.

[13]

According
    to Ms. Cantin, Mr. Cameron was relaxing or sleeping on a chair in the appellants
    living room.  The appellant was in his bedroom.  She went to the washroom and,
    on the way, saw the appellant lying on his bed.  There was a baseball bat in
    the bedroom, which was unusual.  While she was still in the washroom, she heard
    the sounds of a beating and, when she called out to see what was going on, the
    appellant came to the bathroom door and told her to stay inside, which she
    did.  She heard more beating sounds.  The appellant came back to the bathroom
    and threw to her a large piece of crack cocaine, which she began to smoke.  She
    heard more beating sounds.  The appellant then returned to the bathroom a third
    time, by which point all was silent.  The appellant was holding a bloody
    baseball bat in his hands and told her to go to her bedroom and to stay there, which,
    again, she did.

[14]

There
    was no mention of bathrooms in the appellants story.  On his version of
    events, he went to bed when Ms. Cantin was throwing her tantrum as a result of
    not getting any crack cocaine from Mr. Cameron.  He fell asleep.  Sometime
    later he awoke to the sound of noises in the living room.  When he went to find
    out what was going on, he saw Ms. Cantin standing over the deceased, who was
    kneeling on the floor, naked from the waist down.  Ms. Cantin was swinging a
    baseball bat at Mr. Cameron who was putting his hands over his face.  When Ms.
    Cantin hit Mr. Cameron and he fell to the floor, the appellant rushed to his
    defence, grabbing the bat from Ms. Cantin and putting it in the hallway. 
    Without warning, however, Ms. Cantin recovered the bat and began swinging it
    again at Mr. Cameron, as well as at the appellant.  She struck Mr. Cameron in
    the head.  The appellant started yelling at her and chased her into the
    bedroom.

[15]

Afterwards,
    the appellant returned to the living room and called Villeneuve and Rowley.  While
    talking on the phone, he heard Mr. Camerons body thump on the floor.  Mr.
    Camerons head slammed repeatedly against the floor, and he appeared to be
    having a seizure.  The appellant put a pillow under his head.

Other Evidence

[16]

Mr.
    Villeneuve and Mr. Rowley testified that, when they arrived, the appellant said
    to them he had hit Mr. Cameron and that he may have hit him hard.  The
    appellant does not deny this.  The three discussed what to do with the body. 
    This led to the trip to the conservation area near Palgrave, described above.

[17]

There
    was also some discussion about whether Mr. Cameron was dead or alive when the
    two friends arrived.  Mr. Villeneuve said that Mr. Cameron showed no signs of
    life when they were driving away from the home.  The appellant testified that
    he thought Mr. Cameron was dead when his friends arrived, but that he was alive
    and coherent when they arrived at the conservation area.  Believing this to be
    the case, he left Mr. Cameron in the back seat of his car, with the keys,
    thinking that he would be able to drive himself away.  His theory was that Mr.
    Cameron had crawled out of the car to get away, but that he had been too weak
    to do so and died in the bushes nearby.

[18]

Because
    of the steps taken after the offence, described above, most of the evidence
    relating to the beating was destroyed.  There was evidence that Ms. Cantins
    blood was found mixed with the blood of a male person (unidentified) in blood
    spatters in the living room.

[19]

Ms.
    Cantin was severely addicted to crack cocaine.  Her evidence was admittedly
    rife with inconsistencies and outright lies.  In addition, there was evidence
    from one of her friends and from Mr. Villeneuve that she had a history of
    violence.  The friend described several incidents where Ms. Cantin (a) chased
    another boyfriend with a knife when he told her he was leaving her; (b) punched
    the appellant numerous times in the head while the appellant was driving and after
    he had told Ms. Cantin that she was not getting any more crack cocaine; and (c)
    chased the appellant around the house with a knife.  Mr. Villeneuve testified
    that Ms. Cantin was regularly violent with the appellant, particularly when she
    was deprived of crack, and that she had an unstable personality.

[20]

The
    appellant, on the other hand, was described as a mellow individual.

[21]

Another
    witness  a close friend of Mr. Cameron  testified that Ms. Cantin admitted to
    having sex with Mr. Cameron in exchange for drugs.  Ms. Cantin denied this and
    said that she had never spent any time alone with Mr. Cameron.  There was
    evidence, however, that the appellant worked during the day and that Mr.
    Cameron regularly spent time with Ms. Cantin alone in the house.

[22]

Not
    surprisingly, the defence relied heavily on this evidence.  The defence argued
    that Mr. Cameron was naked from the waist down when he died because he had
    asked Ms. Cantin for sex or fellatio in exchange for crack and that, in retaliation,
    she then beat him to death.

THE ISSUES

[23]

Given
    the conflicting stories, it was left to the jury to sort out what had happened. 
    In that exercise, the appellant argues that the trial judge misguided the jury
    in several respects through his instructions.  He submits that the trial judge
    erred in law:

a)

by responding to two
    specific questions from the jury in a way that precluded the jury from
    accepting a version of events that would have the appellant and Ms. Cantin jointly
    involved in the assault;

b)

by failing to give an
    effective
Vetrovec
warning to the jury in relation to Ms. Cantins
    testimony;

c)

by providing an
    improper
W.(D.)
instruction to the jury; and

d)

by improperly
    instructing the jury with respect to the appellants post-offence conduct.

[24]

At
    para. 88 of his factum, appellants counsel summarizes the appellants view of
    the effect of these alleged errors:

The jury truly considered the possibility that both the
    appellant and Cantin were involved in the attack until the trial judge
    erroneously instructed them to disregard that possibility.  This error may have
    impacted the verdict in itself.  Furthermore, due to the flaws with the
Vetrovec
and
W.(D.)
instructions, the jury was not properly equipped to assess
    Cantins evidence.  Finally, the jury may have relied upon the post offence
    conduct to conclude it was the appellant, rather than Cantin, who committed the
    offence, but the jury was also given a less-than-ideal instruction on assessing
    the post offence conduct.  The verdict may very well have been impacted by the
    cumulative effect of these errors and a new trial should be ordered.

[25]

In
    spite of Mr. Litkowskis characteristically helpful submissions, however, I am
    not persuaded this is the case.

ANALYSIS

(1)

The Failure to Instruct the Jury on Joint Involvement

[26]

At
    trial, the Crown and defence theories were very simple:  the Crown said the
    appellant acted alone in assaulting Mr. Cameron and caused his death; the
    defence said it was Ms. Cantin who did so.  No one suggested any in-between
    scenario in which both the appellant and Ms. Cantin participated in the
    assault.

[27]

On
    appeal, however, the appellant contends for the first time that two questions
    posed by the jury show that the jurors were concerned about whether both he and
    Ms. Cantin participated in the assault.  Because of this, he says, the trial jury
    should have instructed the jurors that they could consider a version of events which
    spliced together parts of the evidence of the appellant and parts of the
    evidence of Ms. Cantin, and find, as a result, that they were each involved in
    the beating.  Had this happened, the appellant argues, the jury might have
    found that the appellants blow did not substantially contribute to the cause
    of Mr. Camerons death and/or that he did not have the necessary intent for
    murder as opposed to being guilty of manslaughter only.

[28]

I
    would not give effect to this ground of appeal.

[29]

The
    issue arises out of two sets of questions asked by the jury during the second
    day of deliberations.  The first set of the questions were the following:

Please explain manslaughter scenario and first degree.

A.

Does it matter who
    caused or created the initial restriction of movement for an offence of
    unlawful confinement to occur?

B.

If it does matter does
    the continuation of unlawful confinement by a second party constitute an
    offence of unlawful confinement by the second party?

[30]

The
    context of unlawful confinement in which these questions were asked was
    relevant because the jury was invited to rely upon a finding of unlawful
    confinement to support a conviction for manslaughter, thereby affecting the
    manslaughter/murder issue in the case.

[31]

There
    was a lengthy discussion between the trial judge and counsel regarding the
    appropriate response to these questions.  It centred, primarily, on the jurys
    understanding of the concepts of manslaughter, second degree murder, and first
    degree murder in the context of unlawful confinement.  Virtually nothing was
    said about the possibility of joint involvement by the appellant and Ms.
    Cantin.  In a single, fleeting, remark during the discussion, defence counsel
    signalled that he did not want the jury to go down that path:

Defence Counsel:  Does it matter who caused or created the
    initial restriction of movement for an offence of unlawful confinement to
    occur?  I think the simple answer to that is, no.  It doesnt matter but 
    as long as 
just it makes me a little nervous because there seems to be a
    party issue underlying this but that cant be so.

The Court:  Well, thats right.

Defence Counsel:
On the facts that we have
.

[Emphasis
    added.]

[32]

There
    were no objections to the response that the trial judge gave to the jury with
    respect to the first set of questions.  It is the trial judges response to the
    second question submitted by the jury shortly thereafter that generates the
    issue now raised on appeal.  That question was:

Sir, we have found the tree quite helpful.  We are good on
    question/clarification number one from previous note.  To be specific, if
    Celynn struck the first blow that restricted Bobbys movement and then Mr.
    Kostyk struck the subsequent blows, does that constitute unlawful confinement
    on Mr. Kostyks part?

[33]

As
    noted above, counsel for the appellant  not counsel at trial  contends that
    the two sets of questions posed by the jury, taken together, indicate the
    jurors believed both the appellant and Ms. Cantin may have been involved in the
    attack, and that they wished to consider this scenario in the context of the
    murder/manslaughter issue.  If both parties were involved in the assault, and if
    Ms. Cantin had struck the first blow, he argues, this could have affected the
    jurys view on causation and on whether the appellant had the necessary
mens
    rea
for murder.  The jurors should have been allowed to piece parts of the
    appellants version of events and parts of Ms. Cantins together in approaching
    that question.

[34]

The
    trial judge did not give such an instruction.  Instead, he told the jury that
    there was no evidentiary basis for the joint-involvement scenario.  That was a
    reversible error in law, the appellant submits.  I do not agree.

[35]

The
    trial judges response to the second question came after another thorough
    discussion with Crown and defence counsel.  Both were very clear that a theory
    of joint involvement was not being advanced by either side and that, given the
    evidence, it would be mere speculation for the jury to embark upon such an
    inquiry.  With the agreement of both counsel, the trial judge gave this
    instruction:

The problem is theres no evidence of this scenario.  You cant
    speculate or make up things.  I discussed it with counsel.  None of us see that
    theres any evidence to support this scenario.  So, I think to answer that
    question wouldnt be particularly  particularly helpful and germane.  I dont
    think theres anything more that we can say about that.  Youre entitled to
    draw inferences but the  you can only draw inferences from facts that are
    established in the evidence.  There has to be evidence to establish, say fact
    A, maybe fact B, maybe fact C, from which you would draw certain inferences.  But
    if there isnt evidence to support an inference; although it may be a
    theoretical, speculative possibility, you cant speculate.  The issue is, is
    there proof beyond a reasonable doubt of the question based on the evidence? 
    And a reasonable doubt can arise from the evidence or lack of evidence.  And
    while youre entitled to draw inferences from facts that are proven by the
    evidence, youre not entitled to speculate or make up that.  I dont think I
    can say much more.  Thanks a lot.

[36]

Defence
    counsel had no comments following this direction.  He told the trial judge that
    he thought it was accurate.

[37]

In
    this Court, however, the appellant advances a different theory.  He cobbles
    together a scenario  based on the acceptance of some parts of the evidence at
    trial and on the rejection of others  suggesting the following might have
    occurred:  the appellant came out of the bedroom when he heard sounds of a
    beating administered by Ms. Cantin in retaliation for Mr. Cameron having forced
    her to have sex with him in exchange for the drugs she craved;  the appellant
    flew into a rage upon seeing Mr. Cameron with his pants down
[1]
and struck Mr. Cameron in the knee with a baseball bat; he then regretted his
    actions and attempted to help Mr. Cameron to the couch; Ms. Cantin picked up
    the bat again, hit Mr. Cameron in the head and the appellant in the ribs, and
    then ran to her room; the appellant put a pillow under Mr. Camerons head and,
    in a distraught frame of mind, called his friends for advice.  The steps described
    above constituting the post-offence conduct then took place.

[38]

The
    appellant points to some evidence upon which this scenario could be made out. 
    The Crown says it is far-fetched and has no air of reality to it.

[39]

I
    accept that there may have been evidence lending some air of reality to this
    scenario  unlikely as it may have been on the record  and, thus, there was a
    factual basis for providing a joint party liability instruction.

[40]

No
    one disputes that a trial judge has a duty to instruct the jury on all bases of
    liability that are available on the evidence.  Nor is it disputed that defence
    counsels theory or position at trial is not determinative on appeal.  It seems
    to me that the trial judge could have  and, perhaps, with the benefit of
    hindsight, should have  given a joint party liability instruction in response
    to the jurors last question.  He could have told them that, although the
    theory was not being advanced by the defence or the Crown, it was open to them
    on the evidence to consider such a scenario: see
R. v. Babinski
(2005), 193 C.C.C. (3d) 172, at para. 48 (Ont. C.A.), leave to appeal refused,
    [2005] S.C.C.A. No. 201.

[41]

That
    said, I do not think the failure to provide that instruction led to a
    substantial wrong or miscarriage of justice here.  Even if it may have been a technical
    and legal error, it did not constitute a reversible error in law in the
    circumstances of this case.  I would therefore apply the curative proviso found
    in s. 686(1)(b)(iii) of the
Criminal Code
, to this ground of appeal. 
    I say this for the following reasons.

[42]

In
R. v. Polimac
, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 97, leave
    to appeal refused, [2010] S.C.C.A. No. 263, Doherty J.A. re-affirmed that counsels
    position at trial is not determinative when a misdirection or non-direction is
    raised as a ground of appeal; [a] legal error remains a legal error even if
    counsel does not object or even supports the erroneous instruction.  Nonetheless,
    demonstrating a legal error is not the end of the inquiry in terms of setting
    aside a conviction on appeal where defence counsel has taken a contrary
    position at trial.  Trial counsels position is relevant in considering the
    curative proviso:
R. v. Austin
(2006), 214 C.C.C. (3d) 38, at para. 15
    (Ont. C.A.); and
R. v. Chambers
, [1990] 2 S.C.R. 1293, at pp.
    1308-1309.  As Doherty J.A. correctly pointed out in
Austin
, at para.
    14, [a]rguments by appellate counsel that fly in the face of positions taken
    by counsel at trial quite properly attract judicial scepticism and resistance. 
    This is all the more the case where it appears that trial counsels position
    reflects a calculated tactical decision:
R. v. Lomage
(1991), 2 O.R.
    (3d) 621,
per
Finlayson J.A., at pp. 629-30 (C.A.).

[43]

All
    of these considerations are in play here.

[44]

To
    repeat, the theories advanced by the Crown and defence at trial were
    straightforward: either the appellant,
acting alone
,
or
Ms.
    Cantin (or possibly Mr. Villeneuve),
acting alone
, assaulted Mr. Cameron
    with a baseball bat, causing his death.  It was never the Crowns theory or the
    defences theory that the appellant and Ms. Cantin jointly participated in the
    assault.  In fact, both denied that they were involved at all.

[45]

As
    explained above, the appellant puts forward a much more nuanced argument on the
    facts before this Court.  He submits that the jury could have concluded (a) that
    the appellant did assault Mr. Cameron, but only once on the knee, and only
    after Ms. Cantin administered a series of blows to the head first  both using
    a baseball bat  and, (b) that the appellant administered his blow while in a
    rage because he found Mr. Cameron naked from the waist down and was angered
    that Mr. Cameron had demanded sex from Ms. Cantin in exchange for drugs.

[46]

Experienced
    defence counsel at trial eschewed this approach, however.  He made it very
    clear that he was not asking for, and did not want the jury to be instructed on
    joint party liability.  It is evident from the exchange among the trial judge,
    defence counsel, and Crown counsel surrounding the jury questions, that defence
    counsel was very worried about the jurors attempting to navigate the shoals of
    joint party liability and did not want them to do so.  This was a tactical
    decision on his part and, in my view, a reasonable one.

[47]

For
    one thing, as I have already noted, Ms. Cantins evidence was riddled with
    inconsistencies and lies, and defence counsel had enjoyed considerable success in
    undermining the credibility and reliability of her testimony.  From the defence
    perspective, there was a reasonable chance of persuading the jury to reject her
    evidence altogether, thereby raising a reasonable doubt and leading to the
    appellants acquittal on the murder charge.

[48]

More
    compelling, perhaps, was the real risk that, by opening up the possibility of
    joint participation in the assault, the defence would be broadening, rather
    than narrowing, the bases on which the appellant could be convicted for murder. 
    In reality, a joint party liability instruction did not help the appellant; it
    did little to exclude him from liability but, rather, simply added Ms. Cantin
    to the mix in that respect.  On the record as it stands, it seems to me almost
    inevitable that the appellant would have been convicted if the joint party
    scenario had been put to the jury.  This consideration is relevant for two
    reasons.  First, it reinforces the reasonableness of defence counsels tactical
    decision.  Secondly, it belies the argument that the failure to give such an
    instruction led to a miscarriage of justice in the circumstances.

[49]

In
    a criminal trial  particularly a lengthy criminal trial  the trial judge and
    counsel are entitled to, and should, attempt to narrow the issues to what the
    trial is realistically about.  Nothing is to be gained by proliferating the complexities
    that a jury is required to deal with unless the added complexity is something
    that matters in a practical and sensible way.  Justice Charron underscored this
    point in
R. v. Pickton
, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 10:

In my view, the majority
[2]
was correct in finding that no miscarriage of justice was occasioned in this
    trial.  There is no question that the trial judge could have instructed the
    jury more fully on the different modes of participation that could ground
    criminal liability, including the law on aiding and abetting.
In hindsight
    and from a legalistic standpoint, it is easy to argue that he probably should
    have done so
.  However, the adequacy of the jury instructions must be
    assessed in the context of the evidence and the trial as a whole.
There is
    nothing wrong, particularly in complex or lengthy trials, with the trial judge
    and counsels narrowing the issues for the jury by focussing on what is
    actually and realistically at issue in the case
, provided that, at the end
    of the day, the jury is given the necessary instructions to arrive at a just
    and proper verdict. [Emphasis added.]

[50]

In
    my opinion, this approach applies with equal force to the present appeal.  No
    substantial wrong or miscarriage of justice was occasioned by the trial judges
    failure to provide a joint party liability instruction in response to the
    jurys question.  It was open to the trial judge and counsel  as they did  to
    narrow the issues and focus on what was actually and realistically at issue in
    the case.  The possibility of the appellant and Ms. Cantin being jointly
    involved in the beating of Mr. Cameron was not actually and realistically at
    issue in the case.  In addition, as articulated above, such instructions would
    have potentially been far more harmful to the appellants position than
    helpful.

[51]

The
    Crowns case against the appellant was overwhelming, even if Ms. Cantin had
    been involved in the beating.  Moreover, for the reasons referred to above, the
    omission of the joint party liability instruction was harmless from the
    appellants perspective.  I am satisfied that, on this issue, there is no
    realistic possibility that a new trial would produce a different verdict: see
R.
    v. Sarrazin
, 2011 SCC 54, [2011] 3 S.C.R. 505, at paras. 22-28.  The
    curative proviso applies to this ground of appeal.

(2)

The
Vetrovec
Issue

[52]

Nor
    would I give effect to the appellants second ground of appeal that the
Vetrovec
warning given by the trial judge was inadequate.

The
    Need for the
Vetrovec
Warning and the Principles that Apply

[53]

Courts
    have long been alert to the difficulties inherent in assessing the evidence of unsavoury
    witnesses and the need for some sort of warning for triers of fact.  In
R.
    v. Vetrovec
, [1982] 1 S.C.R. 811, Dickson J. set out the modern approach
    to that problem and the underlying basis for what has become known as the 
Vetrovec
warning.  Later decisions of the Supreme Court of Canada and various
    appellate courts have provided further guidance.  In
R. v. Brooks
, 2000
    SCC 11, [2000] 1 S.C.R. 237, at para. 94, Major J. wrote that there is no
    particular language or formula, but the clear and sharp warning required when
    a
Vetrovec
warning is called for must at a minimum,

focus the jurys attention specifically on the inherently unreliable
    evidence.  It should refer to the characteristics of the witness that bring the
    credibility of his or her evidence into serious question.  It should plainly
    emphasize the dangers inherent in convicting an accused on the basis of such
    evidence unless confirmed by independent evidence.

[54]

More
    recently, in
R. v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 47.,
    Fish J. confirmed the two-fold rationale underpinning the
Vetrovec
caution:

A truly functional approach must take into account the dual
    purpose of the
Vetrovec
warning: first, to alert the jury to the danger
    of relying on the unsupported evidence of unsavoury witnesses and to explain
    the reasons for special scrutiny of their testimony; and second, in appropriate
    cases, to give the jury the tools necessary to identify evidence capable of
    enhancing the trustworthiness of those witnesses.

[55]

Khela
also endorsed a general framework to be adopted in constructing
Vetrovec
warnings appropriate to the circumstances.  At para. 37, Fish J. adopted the four-point
    outline set out by this Court in
R. v. Sauvé
(2004), 182 C.C.C. (3d)
    321, leave to appeal refused, [2004] S.C.C.A. No. 246.  He said:

That proposed framework, which I adopt and amplify here, is
    composed of four main foundation elements: (1) drawing the attention of the
    jury to the testimonial evidence requiring special scrutiny; (2) explaining
why
this evidence is subject to special scrutiny; (3)

cautioning the
    jury that it is dangerous to convict on unconfirmed evidence of this sort,
    though the jury is entitled to do so if satisfied that the evidence is true;
    and (4) that the jury, in determining the veracity of the suspect evidence,
    should look for evidence from another source tending to show that the untrustworthy
    witness is telling the truth as to the guilt of the accused. [Emphasis in
    original.]

[56]

Justice
    Fish went on to say, at para 38, that [w]hile this summary should not be
    applied in a rigid and formulaic fashion, it accurately captures the elements
    that should guide trial judges in crafting their instructions on potentially
    untrustworthy witnesses.

The
Vetrovec
Caution Provided Here

[57]

There
    was never any dispute that Ms. Cantins testimony required a very strong
Vetrovec
caution and, after an extensive pre-charge discussion with counsel, the
    trial judge gave one.  He also gave a similar warning regarding the testimony
    of Mr. Villeneuve.
[3]
The appellant submits that the warning with respect to Ms. Cantins testimony
    was not strong enough.  He attacks it on three grounds:

a)

Instead of
    highlighting the key reason to be cautious about relying on Ms. Cantins
    evidence  namely that she was the only other possible suspect and therefore
    had a significant motive to lie  the trial judge implied to the jury that she
    had little motive to do so;

b)

The trial judge failed
    to instruct the jury that it
was
(as opposed to it may be) dangerous
    to rely upon the unconfirmed evidence of Ms. Cantin; and

c)

The trial judges
    references to confirmatory evidence were misleading and unbalanced.

[58]

There
    is some merit in these concerns, but I am satisfied at the end of the day that
    the
Vetrovec
instruction was sufficient.  When read as a whole and in
    the context of the position taken by defence counsel, the entire jury charge
    and the record before the jury, the warning adequately conveyed to the jury the
    need to scrutinize Ms. Cantins testimony with the greatest care and caution
    and not to rely upon it, unless satisfied of its truth, without independent
    confirmatory evidence.  It fulfilled the purposes of a
Vetrovec
warning and the framework to be addressed in crafting such a warning, as
    outlined above.  I say this for the following reasons.

Defence
    Counsels Position at Trial

[59]

First,
    although defence counsel had much to say during the pre-charge discussions
    concerning the
Vetrovec
instruction, the primary thrust of his submission
    was to avoid a
Vetrovec
warning for Mr. Villeneuve altogether and,
    alternatively, to ensure, if one were given, that Ms. Cantin was placed front
    and centre in the
Vetrovic
scenario.  He made submissions with
    respect to the confirmatory evidence issue  some of his suggestions were
    accepted by the trial judge; some were not.  However, defence counsel made no
    objection to (i) the absence of any reference to Ms. Cantin as being the only
    other possible suspect; (ii) the comparison made by the trial judge to the
    respective jeopardy of Mr. Villenueve and Ms. Cantin; or (iii) the use of the
    words may be dangerous as opposed to the words is or would be dangerous
    to convict on the basis of Ms. Cantins evidence alone without confirmation. 
    After the jury charge was delivered, defence counsel made no objection to the
Vetrovec
warning.

[60]

Again,
    counsels position and failure to object at trial, while not determinative, indicate
    that counsel was content that the instructions fairly protected the accuseds
    interests.  As Fish J. observed in
Khela
, at para. 49:

While the obligation to ensure that juries are properly
    instructed clearly falls to the trial judge, counsel should not abdicate their
    duty of assisting the court.  As Bastarache J. recently explained in
R. v.
    Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523:

it is expected of counsel that
    they will assist the trial judge and identify what in their opinion is
    problematic with the judges instructions to the jury.  While not decisive,
    failure of counsel to object is a factor in appellate review.  The failure to
    register a complaint about the aspect of the charge that later becomes the
    ground for the appeal may be indicative of the seriousness of the alleged
    violation.

The Jury Was Well Aware That Only Ms. Cantin Was The
    Alternate Suspect

[61]

The
    appellant strongly criticizes the trial judges failure to point out to the
    jury that it was dangerous to rely on Ms. Cantins uncorroborated evidence
    because she was the only alternate suspect and therefore had a substantial
    motive to lie.  Magnifying this problem, he says, was the trial judges comparison
    between the jeopardies of Mr. Villeneuve and Ms. Cantin.  On this latter point,
    the trial judge told the jury:

As you know she was charged with, and convicted of, attempting
    to obstruct justice for lying to the police in connection with this investigation. 
    She was also very involved in the circumstances surrounding Jermaine Camerons
    death.
She was not in as serious a predicament as Mr. Villeneuve was
    because, unlike Mr. Villeneuve, she was not charged with the killing.
[Emphasis added.]

[62]

In
    his factum, appellants counsel characterizes this passage as particularly
    troublesome [because] it suggested to the jury that they should not consider
    Cantin as possibly guilty of murder and argues that the passage eroded the
    core of the defence because the entire defence theory was that Ms. Cantin
was
the perpetrator.

[63]

Viewed
    in isolation, this passage may have been problematic.  It could, perhaps, have
    conveyed to the jury a softening of the
Vetrovec
caution
vis-à-vis
Ms. Cantin because  as compared with Mr. Villeneuve  she faced no jeopardy arising
    out of the killing and therefore may have had a lesser motive to lie.  However,
    it is the case that Villenueve, and not Ms. Cantin, had been charged with the
    murder and the impugned passage should not to be viewed alone and in
    isolation.

[64]

The
    impugned language must be considered in the context of the
Vetrovec
warning as a whole and in light of the entire record before the jury and the
    he did it/she did it positions advanced by the Crown and the defence.  The
    trial judge crafted his
Vetrovec
instruction after entertaining
    lengthy submissions from counsel.  As already indicated, the primary thrust of
    defence counsels pre-charge submission was to avoid any
Vetrovec
caution for Villeneuve.  However, as the trial judge pointed out, such a
    caution was almost certainly required as Villeneuve had originally been charged
    as a party to the murder and that charge had been withdrawn after he agreed to
    cooperate with the police.  In response to the defence position, the trial
    judge agreed to tone down the caution he had originally proposed with respect
    to Villeneuve.  Both Villeneuve and Cantin were in the same situation as alternative
    suspects.  The defence succeeded in achieving its primary tactical advantage of
    softening the strength of the warning as to Villeneve and it is hardly
    surprising that the price of that gain was a similar result with respect to
    Cantin.

[65]

In
    any event, I am satisfied that in the context of this trial, it would have been
    apparent to the jury that Ms. Cantin was a very unsavoury witness whose
    testimony had to be assessed with utmost reservation.  There were only two
    people at the scene when the deceased was attacked and it simply could not have
    been lost on the jury  given the way the evidence evolved and the way the case
    was put to them  that Ms. Cantin was the only other possible suspect in the
    beating.  Defence counsel did not find it necessary to point this out in his
    closing address, and there was no need for the trial judge to say more than he
    did in his jury instructions.  As Watt J.A. observed in
R. v. Saleh
,
    2013 ONCA 742, at para.108, [s]ometimes  the reasons underlying the need for
    caution are self-evident and an elaborate explanation of them is unnecessary.

[66]

In
    the circumstances of this case, it might well have been preferable for the trial
    judge to add to the criticized passage a formulaic but, of course, Ms. Cantin
    is the only other possible suspect and therefore had an increased motive to lie. 
    However, in my view, this was self-evident.  It was obvious on the record that
    Ms. Cantin was the only other possible suspect and it was equally obvious that
    she had a substantial motive to lie as a result.  I do not think the failure to
    point this out to the jury would have made any difference.  The jury would
    appreciate that if, as the defence suggested, Ms. Cantin were the murderer, she
    could not be trusted as a witness.

May
    Be Dangerous

[67]

Similarly,
    I am not convinced that the trial judges use of the words may be dangerous
    as opposed to is [or would be] dangerous is fatal to the charge.

[68]

In
    the general portion of his
Vetrovec
instruction, the trial judge told
    the jury:

Common sense tells you that, in light of these circumstances,
    there is good reason to look at the evidence of Celynn Cantin and Allen
    Villeneuve
with the greatest care and caution
.  You are entitled to rely
    on their evidence even if it is not confirmed by another witness or other
    evidence, but
it may be dangerous
for you to do so.  Accordingly, you
should
look for some confirmation of the evidence of each of these witnesses from
    somebody or something other than their evidence before you rely upon their
    evidence in deciding whether Crown counsel has proven Fran Kostyk guilty of the
    crime charged, or an included offence, beyond a reasonable doubt. [Emphasis
    added.]

[69]

The
    appellant submits this language diluted the impact of the
Vetrovec
warning and, together with the other alleged errors in it, turned the caution into
    something less than the strongest possible warning called for in the
    circumstances.  I disagree.

[70]

The
    overall tenure of the
Vetrovec
instruction concerning Ms. Cantins
    testimony was very strong and the factual matrix of the trial itself revealed
    the characteristics of Ms. Cantin that generally undermined the credibility and
    reliability of her story.  As noted, the jurors were told to assess that
    testimony with the
greatest
care and caution.  The trial judge
    outlined the reasons for the
Vetrovec
instruction and, in giving it,
    he fully canvassed the numerous acute frailties associated with that testimony. 
    These frailties included: Ms. Cantins criminal record and conviction for
    obstructing justice by lying to police in connection with this very case; her
    involvement in the circumstances surrounding Mr. Camerons death; her serious
    drug problems and the evidence that she had been aggressive in the past (This
    includes Ms. Cantins reaction to being deprived of drugs and her craving for
    them, and that her craving  may have given her a motive to lie about what she
    was doing with Mr. Cameron); her memory issues (Ms. Cantin was smoking crack
    cocaine that night); the central importance of her evidence as the only other
    person in the house at the time; and her admitted lies to the police.  In
    short, the jury was made well aware of the many reasons for finding Ms.
    Cantins evidence untrustworthy.

[71]

The
    appellant points out that
Watts Manual of Criminal Jury Instructions
(Toronto: Thomson Carswell, 2005) calls for the use of the mandatory language
    it
is
dangerous for you to do so.  This is true, and it may have
    been preferable had the trial judge adopted this language rather that opting
    for the use of the words may and should.  However, while it is generally desirable
    for trial judges to adopt the language of the Specimen Charge, the failure to
    do so does not necessarily constitute reversible error.

[72]

There
    is no doubt that a strong
Vetrovec
instruction regarding Ms. Cantin
    was mandatory in these circumstances, and it was given.  It does not follow,
    however, that the use of the words is dangerous or would be dangerous was
    also mandatory.  The language to be used is very much a matter for the trial
    judges discretion and no formulaic language is obligatory, provided the jurors
    are adequately cautioned about the dangers of convicting based on the
    unconfirmed evidence of the
Vetrovec
witness alone.  Justice Watt
    himself observed in
Saleh
, at para. 108, that:

Vetrovec
eschewed formulaic instructions in favour of a
    judicial discretion to compose a wording responsive to the needs and
    circumstances of the case:
Khela
, at paras. 38;
Smith
,
[4]
at para. 16.  A failure to include a specific component in a
Vetrovec
instruction may not prove fatal where the charge, read as a whole, otherwise
    serves the purposes of a
Vetrovec
warning:
Khela
, at para. 44.

[73]

It
    bears noting that  unlike judges, lawyers, and legal academics, perhaps 
    jurors are not chosen for their capacity as wordsmiths.  They are chosen for
    their ability to apply common sense and the judgment of an accuseds peers to
    the situation at hand.  I am not persuaded that, in these circumstances at any
    rate, the jury would have placed much importance on the use of the qualifiers may

and should, as opposed to is or would be.  What would have jumped
    out at them is the word dangerous and the implications that go with that
    concept.

[74]

I
    am not satisfied that the use of the less-than-mandatory language here, either
    viewed alone or in combination with the other complaints about the
Vetrovec
warning, was an error.

The
    Confirmatory Evidence

[75]

Having
    alerted the jurors to the risks of convicting the appellant on the unconfirmed
    evidence of Ms. Cantin, the trial judge reviewed ten items of evidence that he said
    could be confirmatory.  With the exception of one of these items  the
    appellants statement to Mr. Villeneuve that he had hit Mr. Cameron, and may
    have hit him hard  the appellant contends that the balance of the list was
    misleading and could not assist the jury because it did not corroborate
    material aspects of Ms. Cantins testimony: see
Khela
, at para. 43.

[76]

For
    evidence to be confirmatory in the
Vetrovec
sense, it need not in
    fact be confirmatory, that is, of assistance to the jury; it need only be
    capable of being confirmatory.  The appellants arguments miss this mark. 
    Whether an item of evidence is capable of confirming the evidence of another
    witness, and whether the jury should accept it as doing so, are two different
    questions.

[77]

Confirmatory
    evidence must be independent of the evidence of the
Vetrovec
witness
    and must confirm material aspects of that evidence. The confirmatory evidence
    need not implicate the accused in the commission of the offence.  Nonetheless,
    the items of confirmatory evidence should give comfort to the jury that the
    witness can be trusted in his or her assertion that the accused is the person
    who committed the offence; they must be capable of restoring the triers
    faith in
relevant
aspects of the witness account; and  where the
    only issue is whether the accused committed the offence  the trier of fact
    must be comforted that the impugned witness is telling the truth
in that
    regard
before convicting on the strength of that witnesss testimony:
Khela
,
    at paras. 42 and 43 [emphasis in original].

[78]

Here,
    the trial judge was very careful to present the suggested confirmatory evidence
    in a balanced way by highlighting not only the confirmatory aspects of it, but
    also reminding the jurors of any significant conflicting evidence on each point. 
    He told them that to be confirmatory,

the testimony of another witness or witnesses or other evidence
    should be such that it helps restore your faith in relevant parts of [Ms.
    Cantins evidence].

[79]

Most
    of the appellants arguments are directed at showing why the jury
should
    not
accept the individual items of evidence in question as confirmatory 
    given the significant conflicting evidence in relation to each of them (with
    the one exception)  rather than showing why the evidence
could not
have been confirmatory.  In my view, if the jury rejected the conflicting other
    evidence and accepted as accurate the individual items of confirmatory
    evidence, that evidence could help restore the jurys faith in the relevant
    aspects of Ms. Cantins account of events and, as the trial judge said, could offer
    confirmation for important aspects of Ms. Cantins evidence about what she
    heard and saw at the most critical time.  This could provide comfort to the
    jury that she was telling the truth about what happened that evening.

[80]

The
    following items of evidence listed by the trial judge as capable of
    confirmation were particularly persuasive, in my view:

a)

Mr. Villeneuves
    testimony that, when he arrived at the scene, he saw a bloody bat standing in
    the hall and that the appellant told him: I hit him, and I hit him fairly
    hard (this pointed directly to the appellant in the he did it/she did scenario
    presented to the jury, and the appellant concedes it is confirmatory);

b)

The appellant
    acknowledged a bat had been in his bedroom earlier that night, but was in the
    living room at the time Ms. Cantin said she was in the bathroom (Ms. Cantin
    testified that she saw a baseball bat leaning up against the window in the
    appellants room when she went to the bathroom just before Mr. Camerons
    beating  an unusual place for the bat to be kept  and that she later saw a
    bloody bat in the appellants hands when he later came by the bathroom;

c)

The evidence of the
    pathologist that the deceased had been hit at least eight times and that the
    injuries were consistent with being caused by a baseball bat (Ms. Cantin
    testified that, as she sat in the bathroom, she heard a loud thump followed by
    a number of banging or smacking sounds);

d)

The appellant
    confirmed Ms. Cantins testimony that he had told her to lie to the police
    about when they had last seen the deceased and about the deceased coming into
    the house; and

e)

There was evidence
    from the appellant, Mr. Villeneuve, and Brian Rowley that could confirm Ms.
    Cantins testimony about what she heard after she was told to go to her bedroom
    and stay there: that Rowley and Villeneuve came into the house; that there were
    sounds of crack cocaine being smoked in the kitchen; that there were sounds of
    Mr. Cameron being moved and the sounds of vehicles leaving the scene; and that
    there was a discussion between the appellant and the others about why Mr.
    Camerons pants were down.

[81]

The
    appellant stresses that Ms. Cantins testimony about hearing the appellant and
    Mr. Villeneuve discuss Mr. Camerons pants being down is simply implausible.  It
    is implausible, the appellant alleges, when one considers the evidence about
    Ms. Cantin and Mr. Camerons prior sexual relations, the evidence about her
    propensity for violence when denied drugs, and the fact that her blood was
    found mixed with the blood of a male person in the living room.  Ms. Cantins
    testimony therefore cannot be confirmed by the evidence of Mr. Villeneuve and
    the appellant on this point.

[82]

Again,
    the appellant is confusing evidence that was powerful on the issue of who had
    beaten Mr. Cameron and that could have led to the rejection of Ms. Cantins
    testimony, with the notion of whether the evidence of the appellant and Mr.
    Villeneuve
could be
confirmatory of her contrary testimony.  If the
    evidence of the appellant and Mr. Villeneuve were believed, it could still be
    confirmatory of this important part of Ms. Cantins evidence.

[83]

There
    were other items suggested by the trial judge as being capable of confirming
    Ms. Cantins testimony.  I do not think any was misleading, but the foregoing
    are the most salient items.  Depending on the evidence the jury accepted, they
    were all
capable
of being confirmatory.

[84]

I
    would not give effect to this ground of appeal.

The
W.(D.)
Argument

[85]

In
    his written submissions, appellants counsel argues that the trial judge erred
    in failing to provide a sufficient
W.(D.)
instruction.
[5]
In particular, he suggests that, in some parts of the charge, and in the trial judges
    response to the jurys questions, the trial judge did not refer to the second
    branch of the
W.(D.)
test.  Counsel did not develop this argument
    further in oral submissions.

[86]

The
    trial judge gave an explicit and accurate
W.(D.)
instruction that
    clearly drew their attention to the second branch of the test, however:

In order to exemplify the correct approach I must give you the
    following instruction.

If you believe Mr. Kostyks evidence that he did not do
    anything that caused or contributed to Jermaine Camerons death, then obviously
    you must find him not guilty.

Even if you do not believe Mr. Kostyks evidence
that he
    did nothing that caused or contributed to Jermaine Camerons death,
if his
    evidence leaves you with a reasonable doubt about his guilt, you must find him
    not guilty.
[Emphasis added.]

Even if Mr. Kostyks evidence does not leave you with a
    reasonable doubt about his guilt, you may convict him only if the rest of the
    evidence that you do accept proves his guilt of the offence charged, or an
    included offence, beyond a reasonable doubt.

[87]

The
    appellant concedes that this was a proper charge.  He submits, however, that in
    two other places in the charge the trial judge skipped over the second branch
    of the
W.(D.)
instruction and may have implied to the jurors that they
    need not consider whether, even if they disbelieved the appellant, his evidence
    raised a reasonable doubt.  I do not accept this submission and note, again,
    that the sufficiency of the charge was supported by the lack of any objection
    by defence counsel either to the charge on the burden of proof generally or on
    the
W.(D.)
instruction in particular.

[88]

The
    first of the impugned passages occurred immediately prior to the proper
W.(D.)
instruction outlined above and the jury could not have considered it in
    isolation.  The passage focused, correctly, on the need for the jury not to
    treat the case as a credibility contest between the appellant and Ms. Cantin. 
    It made it clear that the jury had to be convinced that the Crown had proved
    all of the essential elements of the offence beyond a reasonable doubt.  The
    second impugned passage was part of the instruction on causation.  Again, the
    trial judge pointed out that the jury was not compelled to choose between the
    testimony of the appellant and that of Ms. Cantin and that the appellant was
    entitled to the benefit of any reasonable doubt as to whether the Crown had
    proved causation.

[89]

When
    the charge is read as a whole, including the proper
W.(D.)
instruction
    recited above, it is clear that the jury was fully instructed on the burden of
    proof and the requirement to apply the
W.(D.)
analysis.

Post-Offence Conduct


[90]

The
    appellant admittedly engaged in post-offence conduct that could reflect on his commission
    of the beating.  This conduct is summarized in para. 9 above.

[91]

The
    appellant submits that the trial judge erred in respect of the post-offence
    conduct in two ways.  First, he declined to give a no probative value
    instruction to the jury.  Secondly, the instruction he did give confusingly invited
    the jury to engage in circular reasoning,
i.e.
, that, because the
    appellant believed he had committed the offence, the jurors could use the
    post-offence conduct to find that he had done so.  Neither submission can
    succeed.

[92]

A
    no probative value instruction is given where the post-offence conduct is
    equally consistent with the commission of two or more offences.  The jury is
    told in such circumstances the post-offence conduct is of no probative value in
    helping them determine whether or not the accused committed the crime in
    question because the evidence cannot logically support an inference of guilt
    with respect to one crime rather than the other: see
R. v. White
, [1998]
    2 S.C.R. 72, at paras. 21-28;
R. v. Arcangioli,
[1994] 1 S.C.R 129, at
    pp. 145-46; and
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433, at
    paras. 37-47.

[93]

That
    said, a no probative value instruction is not called for in all situations
    involving post-offence conduct.  As the Supreme Court of Canada said in
White
(1998), at para. 29:

By contrast, a no probative value instruction is not required
    where the accused has denied any involvement in the facts underlying the charge
    at issue, and has sought to explain his or her actions by reference to some
    unrelated culpable act.  In such cases it is the identity of the accused as the
    perpetrator, rather than the extent of his or her culpability, that is in
    issue, and it will almost invariably fall to the jury to decide whether the
    evidence of post-offence conduct can be attributed to one culpable act rather
    than another.

[94]

This
    observation applies with equal force to this case.  The appellant denied any
    involvement in the beating of Mr. Cameron.  He sought to explain his subsequent
    conduct as an act of protection for Ms. Cantin.  That conduct would have been
    criminal in any event, because, as the appellant submits, it arguably amounted
    to his being an accessory-after-the-fact.

[95]

In
    the appellants view, because he had admitted to the post-offence conduct, he had
    admitted to being guilty as an accessory-after-the-fact, and therefore the no
    probative value instruction should have been given.  But, as the Crown
    contends, the significance of this particular aspect of the evidence was not
    whether the conduct was equally consistent with the conduct of a person guilty
    of one offence or another; its significance went to a determination of
who
    it was
who had beaten Mr. Cameron.  The trial judge emphasized on several
    occasions that the jurors were to be particularly alive to considering whether
    there was any other reason that explains why [the appellant] did and said
    these things.

[96]

In
    addition, post-offence conduct generally refers
back
to conduct that
    could be consistent with an awareness of having committed an earlier offence.  The
    post-offence conduct or after-the-fact conduct here is the very conduct
    constituting the commission of the offence.

[97]

Neither
    do I accept that the instructions on post-offence conduct, considered as a
    whole, displayed what the parties refer to as a
Hall
error  that is,
    an invitation to engage in the circular reasoning that, because the appellant
    knew he was guilty of committing the offence, he therefore committed it: see
R.
    v. Hall
, 2010 ONCA 724, 263 C.C.C. (3d) 5, at paras. 142-44, leave to
    appeal refused, [2010] S.C.C.A. No. 499.

[98]

In
    my view, the
Hall
critique does not apply in this case.  The trial
    judge did not tell the jurors that they were to decide whether the appellant
    engaged in the post-offence conduct because he was conscious that he had
    committed the offence in question, as was the case in
Hall
.  He told
    them that, if he did or said those things because he was conscious of having
    caused Mr. Camerons death, they could consider that evidence, along with all
    the other evidence, in determining whether he did cause Mr. Camerons death
    unlawfully.

[99]

Again,
    while these instructions may seem similar in some respects, the issue of the
    appellant being conscious of having caused Mr. Camerons death was relevant to
    whether the appellant was the person who had administered the beating, not to
    whether he was conscious of having been guilty of the offence of murder,
    manslaughter, or unlawful confinement.  The jurors, moreover, were given a clear
    direction that they were not to use the evidence I have been referring to
    about what [the appellant] did or said afterwards in deciding or helping [them]
    decide that [the appellant] caused Mr. Camerons death unless [they] reject any
    innocent explanation for it.  Causation was only one of several steps the jury
    had to take before determining the ultimate question of whether the appellant
    was guilty of murder or manslaughter.  The jurors were not invited to jump
    directly to the issue of guilt as a precondition to deciding the use they would
    make of the post-offence conduct evidence; that is, concluding the deliberation
    process backwards as described in
White
:
Hall
, at para. 143.

[100]

As Weiler J.A.
    noted in
R. v. Peavoy
(1997), 117 C.C.C. (3d) 226, at p. 238 (Ont.
    C.A.):

Evidence of after-the-fact conduct is commonly admitted to show
    that an accused person has acted in a manner which, based on human experience
    and logic, is consistent with the conduct of a guilty person and inconsistent
    with the conduct of an innocent person.

[101]

Here, what the
    appellant admittedly did and said after the beating was administered to Mr.
    Cameron is very powerful evidence that he, in fact, was the person who
    administered that beating, assuming the jury rejected his testimony that he did
    so to protect Ms. Cantin.  The charge in this case adequately instructed the
    jurors on how to consider this evidence, along with all of the other evidence 
    circumstantial or otherwise  in the case.

The Sentence Appeal

[102]

A conviction for
    second degree murder carries with it an automatic sentence of life imprisonment
    with no eligibility for parole for 10 years.  However, a trial judge has the
    discretion to impose a longer period of parole ineligibility.

[103]

The Crown sought
    the imposition of a 15-year period of parole ineligibility.  The defence argued
    that the circumstances did not warrant any increase.  The trial judge sought
    input from the jury; four members made no recommendation; five recommended 10
    years; and three recommended 15 years.  The trial judge settled on a 13-year
    period of parole ineligibility.

[104]

The decision to
    increase the period of parole ineligibility is discretionary and entitled to
    considerable deference.  Absent an error in principle or a misapprehension of
    material evidence, an appeal court will not lightly intervene and, in
    particular, will not do so to adjust a mandatory period of parole
    ineligibility downward by two or three years:
R. v. Dooley
, 2009 ONCA
    910, 249 C.C.C. (3d) 449, at para. 179, leave to appeal refused, [2010]
    S.C.C.A. No. 179.

[105]

I see no error
    in principle or misapprehension of the evidence here and would not interfere
    with the trial judges choice of 13 years.

[106]

The appellant
    argues that the trial judge erred in characterizing the seriousness of the
    offence by relying on aggravating factors that had not been proven beyond a
    reasonable doubt.  He points to the trial judges treatment of:

(i)

the motive for the offence;

(ii)

the severity of the attack; and

(iii)

the callous nature of the attack.

[107]

With respect to
    motive, the trial judge said that the murder appeared to have been motivated by
    the appellants need for drugs and a desire to put an end to the debt owed by
    him to Mr. Cameron.  With respect to the severity of the offence, he concluded
    that more than eight blows were struck.  With respect to the callous nature of
    the offence, the trial judge noted that the appellant had not called an
    ambulance after the beating, although on his own evidence the appellant thought
    that Mr. Cameron may still have been alive.

[108]

The trial judge did
    not err in relying on these aggravating factors.  There was no doubt that the
    murder took place in the context of drugs, and the appellants debt to Mr.
    Cameron was front and centre at trial.  The trial judge was entitled to rely on
    the pathologists evidence that at least eight blows had been dealt to the
    victims head
in addition to
the vicious blow to the knee.  The
    finding that the appellant acted in a callous fashion was amply supported by the
    evidence.  The appellant acknowledged that he thought Mr. Cameron was still
    alive (bleeding, gurgling, grunting, and not making a lot of sense).  He
    acknowledged that he should have called an ambulance.  Instead, he called his
    friends, smoked some crack cocaine, and, together with his friends, drove Mr.
    Cameron to a remote location 30 minutes away, and abandoned him, naked.  He then
    took deliberate steps to try to hide what he had done, including destroying
    evidence, telling others to lie to the police, and lying himself to the police.

[109]

There were mitigating
    factors in the appellants favour.  The trial judge recognized them.  The
    appellant had had a difficult upbringing, yet had managed to make himself a
    somewhat productive member of society.  He had a criminal record, but it was
    dated and did not have much bearing on the sentence.  The trial judge concluded
    there was no basis to think that [the appellant had] a generally violent
    disposition, or that he [was] unlikely to benefit from efforts to rehabilitate
    him.

[110]

In spite of
    these factors favouring the appellant, however, the trial judge concluded,
    based on the foregoing, that the nature of the offence and the circumstances
    surrounding its commissions called for an increase in the period of parole
    ineligibility from 10 years to 13 years.

[111]

I see no basis
    for interfering with that decision.

Disposition

[112]

For the
    foregoing reasons, I would dismiss the conviction appeal.  I would grant leave
    to appeal sentence but dismiss the sentence appeal as well.

R.A. Blair J.A.

I agree K.M. Weiler
    J.A.

I agree Robert J.
    Sharpe J.A.

Released: June 09, 2014





[1]
The appellant was no longer in a relationship with Ms. Cantin at the time, but
    they lived in the same house and still had regular sexual intercourse.



[2]
The reference is to the majority decision in the British Columbia Court of
    Appeal.



[3]
At trial, defence counsel objected to this.



[4]

R. v. Smith
, 2009 SCC 5, [2009] 1 S.C.R. 146.



[5]

R. v. W.(D.)
, [1991] 1 S.C.R. 742.


