This week’s top three summaries: R v Hotomanie, 2022 SKCA 119: #probation as severity in sentence, R v Kebede, 2022 ABCA 353: 1st degree from #injuries, and R v BTD, 2022 ONCA 732: uneven scrutiny and #animus.

This week's top case deals with sentencing issues. For great general reference on the law of sentencing, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

Sentencing: Principles and Practice

By Danielle Robitaille & Erin Winocur

Building on general principles, this text tackles both common and unusual sentencing issues and questions, and pragmatically discusses plea negotiations, procedure and advocacy, dangerous offenders, types of sentences, Charter considerations, appellate issues, and ancillary orders, as well as post-sentencing issues.

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R v Hotomanie, 2022 SKCA 119

[October 20, 2022] Sentencing: Severity of Sentence Increased by Probation [Reasons by Leurer J.A. with Jackson and Caldwell JJ.A. concurring]

AUTHOR’S NOTE: Selling probation instead of incarceration during sentencing can often be an uphill battle from the defence perspective. Very effectively, this case makes the point that probation's rehabilitative effects reduce the long-term danger of an offender to the public. Also, a prison sentence coupled with long probation here was viewed as more restrictive than simply a long-term prison sentence that would have been in line with the jump principle in sentencing. In short, this case is a useful authority to present any time a shorter jail sentence is being pitched to the court by the defence if there is a prospect of participation in probationary programming. 

I. Introduction

[2] Mr. Hotomanie pled guilty to nine offences relating to several incidents where he was either driving while impaired or driving while he was prohibited from doing so. For all these crimes, Mr. Hotomanie was ordered to serve two years’ imprisonment, followed by three years of probation, and he was given a ten-year driving prohibition: R v Hotomanie, 2021 SKPC 38, 74 CR (7th) 210 [Sentencing Decision].

[3] Although the outcome of this appeal is largely dictated by the standard that governs when this Court reviews a sentencing decision, the Crown has raised several grounds that justify the grant of leave to appeal. However, when its arguments are closely examined, its appeal must be dismissed. My reasons follow.

II. Background

[5] Mr. Hotomanie was born in 1966 into a life of conflict. He was physically abused by both his stepfather and his step-siblings. His mother and his stepfather abused alcohol, and family violence was common when they were intoxicated. Beginning at the age of six, Mr. Hotomanie spent time in and out of foster care, at Gordon’s Indian Residential School and, eventually, the Saskatchewan Boys’ School. At each place, he experienced sexual and other forms of physical abuse.

[6] To deal with the trauma of his upbringing, Mr. Hotomanie turned to alcohol. Fueled by his abuse of alcohol, Mr. Hotomanie accumulated what the judge aptly described as a “horrendous” criminal record, including many convictions for driving offences (Sentencing Decision at para 8). In 2001, when Mr. Hotomanie was 33 years old, he came before this Court after the Crown appealed from a conditional sentence of six months imposed on him following his twelfth conviction for impaired driving and other related offences. This Court overturned that sentence and substituted it with an order that he be incarcerated for three and a half years: R v Hotomanie, 2001 SKCA 65 at paras 8–9 and 11, 207 Sask R 241 [Hotomanie 1].

[7] Mr. Hotomanie continued to offend after 2001. However, he later made what the judge in the current matter concluded were significant attempts at rehabilitation.

[11] On January 23, 2021, Mr. Hotomanie was again visiting Saskatchewan, this time for his mother’s funeral after her death from COVID-19. The judge found that Mr. Hotomanie “again began to drink, and incurred the most recent charges” (at para 16). The File Hills Police Service received a call from Mr. Hotomanie’s girlfriend indicating that he was driving while impaired. The police found Mr. Hotomanie in a pick-up truck near Carry the Kettle First Nation. Mr. Hotomanie at first provided a false name but was eventually identified by his distinctive tattoos and arrested for obstructing a peace officer in the execution of his duties. The officer did not have an approved screening device at hand, so Mr. Hotomanie was charged with the offence of obstructing a peace officer, along with breaching his probation and breaching an administrative driving prohibition that was in place due to the charges from March 2019.

[12] Two days later, on January 25, 2021, the mother of Mr. Hotomanie’s girlfriend contacted the Regina Police Service to report that Mr. Hotomanie was once again driving while impaired. The police located Mr. Hotomanie in the driver’s seat of a vehicle. He initially denied that he had been driving the vehicle, however his girlfriend, who was with him, contradicted him. Mr. Hotomanie was detained and provided a breath sample into an approved screening device, which registered a result of “fail”. He was arrested for impaired driving, taken to a police station and given a demand for a breath sample which he refused.

[13] Less than two weeks later, in the early morning hours of February 6, 2021, the File Hills Police Service received a report of a vehicle located in a ditch on Carry the Kettle First Nation. When police located the vehicle, Mr. Hotomanie was found in the front passenger seat. He was charged with breaching a release order, which required him to maintain a curfew at an approved residence from 11:00 p.m. to 5:30 a.m. Carry the Kettle First Nation is nearly an hour’s drive away from his approved residence in Regina.

[14] Mr. Hotomanie pled guilty to the following charges:

(a)  Relating to the incident on March 8, 2019, for which the Crown proceeded by indictment: impaired driving, dangerous driving, driving while prohibited and breach of probation by consumption of alcohol;

(b)  Relating to the incident on January 23, 2021, for which the Crown proceeded summarily: obstruction of a peace officer and driving while prohibited;

(c)  Relating to the incident on January 25, 2021, for which the Crown proceeded summarily: refusing a demand to provide a breath sample and breach of a release order by being in the driver’s seat of a motor vehicle; and

(d)  Relating to the incident on February 6, 2021, for which the Crown proceeded summarily: breach of probation by failing to keep the peace and be of good behaviour, namely, by being out past his curfew.

III. Sentencing Decision

[15] The judge began his reasons by observing that he needed to consider two competing lines of authority. The first he found was represented by R v Clarke, 2013 SKCA 130, 427 Sask R 50 [Clarke], R v Kakakaway, 2006 SKCA 18, 279 Sask R 159, R v Bear, 2007 SKCA 127, 302 Sask R 153 [Bear 2007], and Hotomanie 1. The judge described these as a “lengthy series of sentencing decisions regarding what the courts describe as habitual impaired drivers or serial impaired drivers”. The judge observed that these cases “have consistently emphasized that the paramount sentencing objectives must be denunciation and deterrence and protection of the public” (at para 1). He also noted that one of these cases involved Mr. Hotomanie himself.

[16] The second line of cases the judge found to be represented by R v Chanalquay, 2015 SKCA 141, [2016] 4 WWR 242 [Chanalquay], R v Whitehead, 2016 SKCA 165, [2017] 5 WWR 222 [Whitehead], and R v Charles, 2021 SKCA 75, [2021] 7 WWR 734 [Charles]. These decisions implement the direction given by the Supreme Court in Gladue and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, relating to the proper application of s. 718.2(e) of the Criminal Code. The judge interpreted these cases to direct that “sentencing courts must consider the unique systemic or background factors that played a part in bringing the offender before the courts and consider rehabilitation and principles of restorative justice, as opposed to incarceration” (at para 2).

[17] Having framed his decision in this way, the judge outlined the immediate circumstances of the offences. He then reviewed details of Mr. Hotomanie’s criminal record, which he noted contained “92 entries, and includes 43 convictions for driving offences”. As part of this, he found it to be “of some significance to [his] decision” that Mr. Hotomanie’s “many driving offences” were prior to a conviction for driving while over .08 and driving while disqualified in May of 2005 and driving while disqualified in June of 2009, meaning that Mr. Hotomanie had committed no driving offences after the latter of these dates until those at issue in this appeal (at para 8). Having regard to Mr. Hotomanie’s record, the judge opined that it was “beyond question that if the Court does not apply some reduction of sentence based upon the Gladue factors, a total sentence in the range of 4 to 6 years would be appropriate” (at para 9).

[20] The judge stated that he saw “no evidence or indication that in any previous sentencing of Mr. Hotomanie, the Gladue factors had been considered and applied” (at para 26). He found that, although Mr. Hotomanie had not previously been ready to deal with his problem with alcohol, he “has made some important and decisive steps towards rehabilitation” and was more committed to receiving treatment for his alcohol addiction than in the past (at para 33). The judge justified this conclusion, in part, on the gap in Mr. Hotomanie’s record which indicated he was amenable to treatment and that the occasions of drinking in 2019 and 2021 had been when “there were deaths and trauma in his family and he started back drinking again” (at para 31). The judge also found that Mr. Hotomanie was now “in a good and supportive relationship”, and that he had expressed a desire to quit drinking for good, go back to school and become a drug and alcohol counsellor.

[21] The judge observed that rehabilitative options had not been attempted for Mr. Hotomanie in the past and, instead, harsher penalties were used to emphasize denunciation and deterrence. The judge still found that “a jail sentence of some length” was necessary and would appropriately make the point “that the Court denounces drinking and driving” while also serving to orient Mr. Hotomanie towards rehabilitation (at para 34).

[22] Based on all of this, the judge concluded that a fit sentence would be for Mr. Hotomanie to serve two years in custody, which would place Mr. Hotomanie in the federal penitentiary system. In addition, the judge imposed a ten-year driving prohibition, and a three-year probation order. The conditions of the probation order include a requirement that Mr. Hotomanie not consume intoxicants and that he “will be required to participate in any program related to the assessment, counselling or treatment for alcohol or other substance abuse as may be directed by the probation officer” (at para 38(7)).

[38] I see nothing in the Sentencing Decision that reveals a misunderstanding or misapplication of Gladue. While the judge erred in his belief that courts in the past had failed to consider Mr. Hotomanie’s Gladue factors, this misunderstanding did not impact the sentence he imposed so as to justify appellate intervention. The judge also did not err in his overall analysis of Mr. Hotomanie’s Gladue considerations as the Crown suggests. I conclude on this point by repeating Jackson J.A.’s comments in Charles:

[62] In the face of a sentence that has been obviously and conspicuously developed with s. 718.2(e) in mind, appellate courts must be particularly sceptical of any argument that does not sensitively consider the sentencing judge’s reasons. An appellate court must be especially critical of any argument that could be perceived as asking for a reassessment of the offender’s degree of responsibility as a means of undermining the sentencing judge’s analysis of an offender’s Gladue factors.

[39] The Crown’s argument under this head amounts to the suggestion that it is appropriate for this Court to reassess Mr. Hotomanie’s degree of responsibility, and so undermine the analysis and fact-finding conducted by the judge. Its submissions call for the application of a correctness standard as opposed to a deferential standard of review. That is not this Court’s role in appeals of this kind.

B. Did the judge err in his balancing of the objectives of sentencing?

[40] The Crown’s next set of arguments revolve around the proposition that the judge erred in principle by unreasonably emphasizing the objective of rehabilitation over the objectives of deterrence, denunciation and separation from society that, the Crown suggests, are more relevant to Mr. Hotomanie’s case. The Crown says that this error led the judge to order a sentence which departs from this Court’s jurisprudence in similar cases regarding the paramount goal of protecting the public from habitual impaired drivers.

[43] To be clear, this Court has unequivocally stated on numerous occasions that, in cases of serial impaired drivers, the primary objective in sentencing must be the protection of the public by separating the offender from society, that is, the objective described in s. 718(c). Given Mr. Hotomanie’s circumstances, a few of these decisions merit further review.

[48] Based on this brief review, there should be no misunderstanding that public protection is a fundamental purpose of sentencing generally, and must remain so particularly in cases of serial impaired driving. Therefore, the question confronting the judge was this: How would the public best be protected in this case? Recalling that, pursuant to s. 731(1)(b) of the Criminal Code, probation may only be ordered if the offender is imprisoned “for a term not exceeding two years”, would the public best be protected by separating Mr. Hotomanie from society for a longer period, or by deterring and denouncing Mr. Hotomanie’s criminal behaviour by imposing a term of imprisonment of two years, while also seeking to rehabilitate him through a probation order?

[49] Understood in this way, the Crown’s objection is not that the judge overlooked the protection of the public, but that he sought to achieve this in an unreasonable way. I do not agree.

[50] Case law directs judges to adopt a purposive approach to what constitutes rehabilitation for the purposes of s. 718(d) of the Criminal Code (J.P. at para 61. See also: R v Friesen, 2016 MBCA 50 at para 36, [2016] 11 WWR 255 [Friesen (D.)]; and R v Charlie, 2015 YKCA 3 at para 42, 320 CCC (3d) 479). Properly understood, rehabilitation is not solely targeted towards correcting an offender’s attitude in order to prevent them from reoffending but is also meant to assist the offender in utilizing structured supports that control, modify or manage their behaviour (see: J.P. at para 61; Friesen (D.) at para 36; and R v Keewatin, 2009 SKQB 58 at para 50, 323 Sask R 150). If a judge determines that an offender is open to it, a sentence that includes a rehabilitation initiative is apt to protect the public and is therefore generally more desirable than one that simply segregates the offender from the public for a lengthy period. In this case, the judge determined that the public was best protected by imposing a sentence that combined both a significant period of incarceration and probation conditions that would most likely lead to Mr. Hotomanie’s long-term rehabilitation. [Emphasis by PJM]

[51] I do not read this Court’s prior decisions as rendering this conclusion to be unreasonable, when proper attention is paid to the facts as found by the judge. As summarized above, this Court has consistently emphasized that for serial impaired driving offenders who are contumacious, remorseless and for whom rehabilitation represents but a “faint possibility” (Bear 1994 at para 14), the protection of the public is best achieved by separating them from society. This was true even for Mr. Hotomanie himself in 2001, when he posed a high risk of reoffending and was a danger to the community. At the time of that decision, Mr. Hotomanie was 33 years old. He was found, correctly it turned out, to be at a high risk of reoffending, and “despite all manner of effort to help the accused overcome his problems, he continued to take little responsibility for his actions, blaming them on alcohol and his life’s experience” (at para 5). In fact, shortly after his sentencing in that earlier case, he broke his electronic monitoring bracelet and went out of province, where he again drove while impaired and was involved in a police chase.

[52] In contrast, by the time he was sentenced in this case, Mr. Hotomanie was 55 years old. The judge found, as fact, that Mr. Hotomanie “has made some important and decisive steps towards rehabilitation” (Sentencing Decision at para 33). He noted that Mr. Hotomanie expressed a desire to quit drinking and become an alcohol counsellor himself, and that he was “in a good and supportive relationship” and had developed long-term career goals for himself (at para 32). Mr. Hotomanie had taken responsibility for his actions and did not attempt to blame them upon others. In short, two decades after Hotomanie 1 was decided, the judge found Mr. Hotomanie to be a different kind of offender than the one he had been two decades earlier.

[53] These significant differences in Mr. Hotomanie’s circumstances, and in the assessment of his moral culpability for the present offences, as well as his amenability to rehabilitation, resulted in a different sentence than that applied to him 20 years ago. Ultimately, the judge determined that he should “seize upon those [rehabilitative] steps and attempt to encourage Mr. Hotomanie to continue down that road” (at para 33).

[58] Just as the objective of rehabilitation should not overwhelm the need for deterrence and denunciation, neither should those objectives be given greater prominence than is necessary to achieve the overall purpose of public protection and the maintenance of a just, peaceful and safe society (see: Charles at para 50). The judge exercised his discretion in balancing the various normative and utilitarian considerations within s. 718 of the Criminal Code, and I cannot say that either the result or the process of this balancing was unreasonable.

C. Is the sentence demonstrably unfit?

[61] The Crown takes issue with the fact that Mr. Hotomanie received a two-year custodial sentence for a subsequent instance of the same behaviour as that in Hotomanie 1, for which he received a sentence of three and a half years. The Crown argues that, since Mr. Hotomanie has continued to offend in the same manner, his custodial sentence should have increased, not decreased. The Crown points out that similar increases in jail time were ordered by this Court in the past (e.g., Bear 1994 at para 32).

[62] With respect, the Crown’s perception of Mr. Hotomanie’s sentence is mistaken. It is an error to focus solely on the period of incarceration that the judge ordered. While it is true that the custodial sentence is less now than was ordered in Hotomanie 1, the judge combined the total period of incarceration with three-years of probation. The latter is not meaningless, nor are its terms insignificant. Viewed in its entirety, the sanction chosen by the judge is a five-year submission to the state’s supervision, under conditions that significantly restrict Mr. Hotomanie’s activities when he is not in custody, combined with a ten-year driving prohibition. Contrary to the Crown’s characterization, this can be reasonably viewed as a more severe sentence than the one Mr. Hotomanie received in Hotomanie 1. [Emphasis by PJM]

[64] As a bottom line, having regard to the facts as found by the judge, I am unable to conclude that the Crown has met the burden of showing that the sentence Mr. Hotomanie received is demonstrably unfit.

V. Conclusion

[65] The sentence imposed in this case was not based on an error in principle that had an impact on the sentence, nor is it demonstrably unfit. Therefore, while I would allow the Crown leave to appeal, I would dismiss its appeal.

R v Kebede, 2022 ABCA 353

[November 4, 2022] First Degree Murder: Planning and Deliberation from Nature of Injuries [Reasons by Martin J.A. with Watson and Crighton JJ.A. concurring]

AUTHOR’S NOTE: Inferring the intent to kill from circumstantial evidence can be very difficult in some cases. It should remain so. This ABCA decision ensured that historical authorities on this point were not displaced. Deliberation for first degree murder must occur "before the act of killing begins."  Consequently, the fact that in a beating, blows are administered over a period of time before death actually occurs or in a sequential shooting, there are periods of time between he first shot and the last, these facts do not raise a murder to the status of a planned and deliberate killing. Even where the evidence of intent to kill is "irresistible" from the nature of the injuries, it is not necessarily a straight line from those injuries to planning and deliberation. 

The Court:

[1] On July 10th, 2017, four people were killed in Calgary. The appellants were charged with first-degree murder for their involvement in one of those killings and being accessories after the fact to the killings of the other three. Following trial, they were convicted as charged. They appeal.

Background Information

[2] The trial of this matter heard from approximately 70 witnesses over six weeks. The following summary is based on evidence heard at trial and reasonable inferences arising from that evidence. As will be explained, cell phone records played in integral part in understanding the relevant events. The phone records of the following six people are particularly significant: Mr. Kebede, Ms. Liao, Mr. Woldetekie, an unidentified person using a phone ending in 2088, (who will be referred to hereafter simply as 2088), and two of the victims, Mr. Afowerk and Mr. Pfeiffer. The police investigation was able to determine who their phones were calling and when, and the telephone towers used to transmit the calls, usually the closest tower to the caller. In addition, Mr. Kebede was using a Blackberry phone with geo-tag location data (geo-data) that recorded his actual location, within meters, at the time of his calls.

[4] On July 9th, 2017, Hanock Afowerk was living in Calgary with an acquaintance, Ms. Gessesse, and her two children. It appears that he supported himself, at least in part, by forging identification documents for other people and had specialized equipment, including a printer, for that purpose. The last picture found on that equipment appeared to be of the appellant, Ms. Liao, attached to a document identifying her as Christine Nguyen.

[5] On the evening of July 9th, 2017, Mr. Afowerk left Ms. Gessesse’s residence saying he had to run an errand and would be back in an hour. He left driving his car, a black Chevrolet Cruze. He never returned.

[6] Late that evening, one of Mr. Afowerk’s cousins, Ms. Lackew, received a phone call from a person using Mr. Afowerk’s phone. The caller identified himself as Mr. Afowerk. He asked for $30,000 he said he had left in her house and offered to send someone to pick up the money. When Ms. Lackew replied that there was no money in her house, the caller asked for $1,500 but again was told that she had no money. Although the caller claimed to be Mr. Afowerk, Ms. Lackew did not recognize his voice and did not believe it was him.

[8] Sometime later, Mr. Afowerk called Ms. Gessesse to ask if she would gather all of his things, including his forgery equipment, and give it to “his girl” who would be coming to pick it up. Shortly thereafter, two people, described as a black man and an Asian woman, came to the Gessesse residence for Mr. Afowerk’s possessions which were in two duffel bags and a few garbage bags. Ms. Gessesse identified Ms. Liao as the woman but was unable to identify Mr. Kebede from a photo line-up. She did, however, identify him later in court. Notably, she did not recall that the man who came to her residence had a facial tattoo, as Mr. Kebede had.

[9] Within the hour, Ms. Gessesse received another phone call from Mr. Afowerk, frantically asking about $10,000 that he said had been in his duffel bag but was no longer there. He pleaded with her to look for the money, which she did. When she subsequently communicated to Mr. Afowerk that she couldn’t find any money, he asked her to keep looking.

[10] Ms. Gessesse tried phoning Mr. Afowerk later but got no response. She never heard from him again.

[11] Two days later, Mr. Afowerk’s body was discovered several kilometers west of Calgary, in a ditch by a major highway. He had duct tape around his ankles and neck. Plastic zip ties were found around one wrist. An autopsy disclosed that he had come to a very cruel end; he had been badly beaten and suffered several broken ribs. He had also been strangled and shot three times and then beaten about the head such that his skull was fractured, leaving a part of his brain exposed. The pathologist said it was this latter injury that caused his death.

[12] In July of 2017, Cody Pfeiffer was living a somewhat nomadic life. On July 9th and 10th, he was in frequent communication with Ms. Liao, Mr. Kebede and 2088. On the morning of July 10th, he was with other people including Tiffany Ear and Glynnis Fox in an apartment in southwest Calgary (“the apartment”). At approximately 2:15 AM, Mr. Kebede and Ms. Liao’s phones pinged off towers near Mr. Pfeiffer’s residence. Between 2:58 AM to 3:09 AM, Mr. Pfeiffer, Ms. Liao and Mr. Kebede’s phones pinged off towers some kilometres from the location where Mr. Afowerk’s body was later discovered. Telephone communications suggest Mr. Pfeiffer was subsequently dropped off at the apartment.

[13] Mr. Pfeiffer then called a family member and a friend, looking for help to leave Calgary immediately. Those efforts were unsuccessful. Shortly before 6:00 AM, Mr. Pfeiffer was in the apartment along with Ms. Fox and Ms. Ear. Mr. Kebede was outside. Phone records suggest Ms. Liao was nearby, apparently in another vehicle. At about 6:00 AM, Mr. Pfeiffer, with Ms. Ear and Ms. Fox, left the apartment apparently to meet with Mr. Kebede. There was no evidence as to whether Mr. Woldetekie or 2088 were in the vicinity.

[14] Between 6:30 AM and 6:34 AM, Mr. Kebede and Ms. Liao communicated with each other using cell towers near Sage Hill, in northwest Calgary.

[16] A black male, thought to be a youth by a witness 80 feet away, was seen walking toward the Chevrolet Cruze vehicle. A flammable liquid was used to set the car on fire. At 6:55 AM, the same white SUV seen minutes earlier was recorded leaving northbound on Sage Hill Drive.

[17] At 7:05 AM, less than an hour after Mr. Pfieffer, Ms. Fox and Ms. Ear left the apartment, firemen discovered their bodies burning inside the Chevrolet Cruze. All were deceased: Ms. Ear had been shot once in the head, Mr. Pfeiffer had been shot seven times, and Ms. Fox had been shot 18 times. Two 9 mm handguns were used in these killings; one of the guns was the same as that used to shoot Mr. Afowerk hours earlier. The Chevrolet Cruze vehicle in which the bodies were found belonged to Mr. Afowerk and was the same vehicle he had driven the night before.

[18] Later that morning, Mr. Kebede, Ms. Liao and Mr. Woldetekie drove the white Jeep Grand Cherokee, which Ms. Liao had rented earlier, to Edmonton to pick up Ms. Liao’s friend, Ms. Litaw. From there, they drove to Saskatchewan. Ms. Litaw testified that when she entered the vehicle it smelled of vomit and was stained with bodily fluids. She saw Mr. Kebede was carrying a handgun at his waist. The group drove to Moose Jaw. The following day, Mr. Woldetekie was dropped off at the Saskatoon Airport where, using Mr. Kebede’s identification, he purchased a ticket to Calgary. He flew from Calgary to Frankfurt, and from there to Addis Ababa, Ethiopia, using his own identification.

[21] The trio then went to the residence of another of Ms. Liao’s acquaintances in Moose Jaw, who allowed them to store some items in her home. Those items, later recovered by the police, included plastic zip ties and Mr. Afowerk’s forgery equipment, with a printer ribbon showing previously printed false identifications, the last appearing to identify Ms. Liao as Christina Nyugen. Eventually, the trio travelled to Toronto and then on to Montreal.

[22] On July 19th, 2017, Mr. Kebede was arrested in Toronto driving a motor vehicle registered to him. In the vehicle was found Mr. Afowerk’s broken cell phone as well as his cut-up bank card and drivers’ licence, along with plastic zip ties that were chemically indistinguishable from those found around Mr. Afowerk’s wrist when his body was discovered. In the driver’s side door panel of the vehicle was found part of a prescription in the name of Cody Pfeiffer.

[24] The interior of the Jeep Grand Cherokee vehicle was forensically examined and found to contain blood from Mr. Afowerk. The duct tape around Mr. Afowerk’s neck was found to contain DNA which was not from either Mr. Kebede or Ms. Liao.

[25] Neither appellant testified nor called any evidence in their defence.

IV. Whether the Verdicts Were Unreasonable

Whether the Convictions for First-Degree Murder were Unreasonable

[108] We begin by noting the overwhelming and undisputed evidence clearly established that the killing of Mr. Afowerk was intentional and that at the time it occurred he was forcibly confined. That was also the position of the trial prosecutor who initially asked the trial judge to instruct the jury on both constructive first-degree murder as defined in section 231(5)(e) of the Criminal Code, and planning and deliberation, as alternative pathways to convict the appellants of first-degree murder. The trial judge agreed.

[109] In their closing submissions defence counsel addressed both issues, acknowledging the killing was intentional but insisting that the appellants were not directly involved. And both trial counsel maintained there was simply no evidence that the killing was planned and deliberate.

[110] As outlined below, Crown counsel had little to say about the killing being planned and deliberate, but stressed that the kidnapping, confinement and extortion was well planned.

[111] Remarkably, after all counsel had delivered their closing addresses, the prosecutor apparently concluded he could not prove an essential element of constructive first-degree murder and asked the trial judge not to leave that option with the jury. The trial judge acquiesced and instructed the jury on planning and deliberation as the only pathway to conviction for first-degree murder.

Whether the Killing was Planned and Deliberate

[112] From the evidence, it is reasonable to assume the jury found that on the night of July 9th, 2017, Mr. Afowerk was lured or taken to Roger’s Auto Body and, while confined there, was extorted, and eventually killed. There can be no question that the killing was intentional. Likewise, it is clear the jury found the appellants personally participated in that killing.

[113] The evidence established that the confinement and extortion of Mr. Afowerk was well planned, going so far as to rent an autobody shop in off-hours to facilitate the scheme. However, to convict of first-degree murder the Crown had to prove that the killing itself was a planned and deliberate act as that phrase has come to be legally interpreted. In this case the Crown sought to discharge that burden by relying on circumstantial evidence.

[117] The Crown’s contention required the jury to infer the plan was not only to kidnap, confine and extort, but also to kill Mr. Afowerk. There are frailties in this position. As to the suggestion that the injuries sustained must have been inflicted over time and the killing was therefore planned and deliberate, other than the obvious that all the injuries were not inflicted simultaneously, there was no evidence to indicate they were not, or could not, have been inflicted in quick succession. The medical examiner was not asked about this and there was no direct evidence to suggest the killing happened over an extended period.

[118] Furthermore, this assertion of the Crown failed to consider this court’s decision in R v Ruptash (1982), 68 CCC (2d) 182, 36 AR 346, which decided that the deliberation required for murder in the first degree must occur before the act of killing begins. In that case the trial judge was found to have erred in deciding a strangulation killing satisfied the legal requirement of planned and deliberate murder merely because the act of killing required four to five minutes of constant pressure to cause death. To be sure, a trier of fact might be satisfied that the manner of killing, understood in a larger context, is some evidence of planning and deliberation because, for example, the manner of killing (just like post-offence conduct) may correspond to evidence of earlier conduct suggestive of planning: see R v Allen, 2009 ABCA 341 at paras 87-92, 249 C.C.C. (3rd) 296, appeal dismissed 2010 SCC 42, [2010] 2 S.C.R. 648. The crucial point, however, is that the jury was the trier of fact and this line of analysis was not explained to them. It follows that while the nature of the injuries was compelling, indeed irresistible, evidence of intent for murder, it was not a straight line from those injuries to planning and deliberation. [Emphasis by PJM]

[119] In our opinion, the nature of Mr. Afowerk’s injuries did not assist in determining whether his killing was planned and deliberate, or whether the injuries were inflicted on the sudden without planning, upon realizing that all the information Mr. Afowerk provided regarding the location of his money was false.

[120] Likewise, regarding the Stika, “U up for a job tonight?” text, which was communicated approximately 20 hours before the offence, there was no evidence as to the nature of the “job” in question. Even assuming it was related to this crime, rather than the appellants’ admitted drug trafficking or some other nefarious activity, it is as reasonable to infer that Stika was being recruited only to kidnap, confine and extort, as it is to infer that he was being recruited to kidnap, confine, extort and kill.

[121] In his charge, under this heading the trial judge instructed the jury on the meaning of planning and deliberation and then turned to the position of the Crown:

...The Crown submits that the fact that Mr. Afowerk was found with duct tape around his neck, duct tape around his feet, and zip ties around one wrist, confirms that this was a planned and deliberate murder....

[122] We pause to note, with respect, that the highlighted portion of the trial judge's charge was in error. The Crown was not relying on the fact the victim was bound as evidence the killing was planned and deliberate. As noted from the quotation of the prosecutor’s address above at para 112, the Crown was relying on the duct tape and zip ties as evidence the victim was then under the domination of his assailants and unable to escape.

[123] The trial judge continued with an enumeration of other factors he understood the Crown to be relying on as further evidence the killing was planned and deliberate. They included reference to Mr. Kebede being in possession of zip ties, that were indistinguishable from those found on Mr. Afowerk, and the phone evidence.

[124] With respect, the trial judge erred in so instructing the jury. The Crown did not rely on that evidence as proof the killing was planned and deliberate, but only that Mr. Kebede was clearly involved in it. To illustrate with reference to the phone calls, the trial judge told the jury that: “[t]he Crown also submits that the location of Phone 4659 [Mr. Kebede’s phone] in relation to three key locations ties Mr. Kebede to the planning and deliberation of the murder of Mr. Afowerk”: Transcript 2806/13-14. With respect, that was not so. The Crown relied on those phone calls to establish that “Tewodros Kebede is instrumental in the murder of Hancock” (Transcript 2680/12), not that the calls were evidence of planning and deliberation.

[127] We note that the jury was fully instructed on the law regarding planning and deliberation and was specifically told that “[i]t is the murder itself that must be both planned and deliberate, not something else that Mr. Kebede did”: Transcript 2802/33-34. As well, the jury was instructed on defence counsel’s rebuttal of the Crown’s submissions.

[128] However, the prospect that the plan may have been only to kidnap, confine and extort Mr. Afowerk, and then release him, confident that he would be unable or unwilling to go to the police as the funds extorted from him were the proceeds of crime, but that his killing was unplanned, born of frustration after all the information he gave regarding the location of his money turned out to be false, was never considered. To be clear, that possibility was not raised by trial counsel. We hasten to add that had this alternative been left with the jury, it would be for them to determine whether, on consideration of all the evidence, the proposed alternative was “reasonable enough to raise a doubt” that the killing was planned and deliberate or it was not: R v Dipnarine, 2014 ABCA 328 at para 22; R v Villaroman, 2016 SCC 33 at para 56.

[129] In the final analysis, we are concerned that the evidence relied upon by the Crown to support the finding that the killing of Mr. Afowerk was planned and deliberate was equivocal and speculative. The Stika text had more than one plausible meaning. The degree of violence used, while clearly establishing an intent to kill, on the facts of this case was neutral as to planning and deliberation. The jury was not so instructed. Our concern is compounded by those references in the trial judge’s charge to additional evidence mistakenly identified as other evidence the Crown was relying on in proof the killing was planned and deliberate, which the Crown had not relied on, and which was not capable of supporting that inference.

[130] We think that on the unique facts of this case, where counsel and the trial judge emphasized that the killing was intimately connected with the planned acts of kidnapping, confinement and extortion, the jury may not have understood that they should consider whether another alternative inference to the killing being planned and deliberate, namely that it was “merely” intentional murder pursuant to section 229(a) of the Criminal Code, was a reasonable conclusion on the evidence.

[134] We conclude the convictions of first-degree murder cannot stand. Accordingly, we invite counsel to provide their submissions in writing before November 10, 2022, as to whether they wish the court to substitute a verdict of second-degree murder pursuant to section 686(1)(b) of the Criminal Code or order a new trial on first-degree murder for each appellant.

[135] We see no reason to interfere with the convictions for being an accessory to the murders of Mr. Pfeiffer, Ms. Ear, and Ms. Fox.

R v B.T.D., 2022 ONCA 732

[October 28, 2022] Uneven Scrutiny and Evidence of Animus [Reasons by L.B. Roberts J.A. with P. Lauwers and Gary Trotter JJ.A. concurring]

AUTHOR’S NOTE: Despite the SCC's recent admonition in G.F. to not finely parse trial judges' reasons in a search for errors, uneven scrutiny continues to be alive and well as a ground of appeal. Here, along with a litany of other tripwire issues suggesting uneven scrutiny, the trial judge also fell into the trap of treating an absence of evidence of a motive to fabricate as a make weight in favour of the credibility of the complainant. This reverses the onus of proof because an absence of evidence is not evidence of absence of motive to fabricate. Here, the trial judge's comments were "“[o]ne of the compelling aspects of [the complainant’s] evidence was the lack of animus directed towards [the appellant] during her testimony. There was not even a hint of vengeance towards [the appellant] in her evidence.” This was found to be no trivial error.

OVERVIEW

[1] The appellant was convicted of sexually assaulting the complainant. After meeting on “Tinder”, a dating app, the appellant and the complainant saw each other for approximately two months before their relationship ended in April 2017. On October 28, 2017, the complainant went to the police and accused the appellant of sexually assaulting her on one occasion in mid-March 2017 while they were dating. The appellant denied the charge and maintained that their sexual relations were consensual.

[3] The appellant argues that the trial judge’s approach was materially flawed because of her misapprehension and uneven scrutiny of the evidence, which led to an unfair trial. He also submits that the trial judge erred in treating the complainant’s apparent lack of animus toward the appellant as bolstering her credibility. As a result, her assessment of the evidence, findings and verdict were fatally tainted, and the conviction represents a miscarriage of justice. The appellant asks for a new trial.

....The trial judge’s treatment of the evidence and her conclusions were the product of reversible error and resulted in an unfair trial.

FACTUAL BACKGROUND

[9] Later that day, starting at around 1:31 p.m., the appellant and the complainant exchanged text messages that both agreed referenced the activities that took place on March 13 and 14, 2017. From about 1:31 to about 4:28 p.m., the appellant and complainant exchanged the following text messages:

The appellant: And I’m sorry I made you late 🙁

The complainant: Yeah, maybe next time when I say stop you could actually stop

The appellant: Are you mad at me

The complainant: I’m not mad, I just said it a few times and you weren’t really listening to me

The complainant: We probably could have eaten breakfast together if you had stopped

The appellant: I’m sorry

The complainant: Thank you for making me dinner and cocktails. I had a really great time

The appellant: 🙂

The appellant: I didn’t want you to leave

The appellant: I wasn’t that impressed with vertigo [1]

The appellant: I mean it was great but his obsession was really starting to get on my nerves

The complainant: I didn’t really want to leave

[10] Between 4:28 and 5:04 p.m., the appellant and the complainant continued to discuss the movie that they had watched the night before. Between 5:04 and 5:25 p.m., they exchanged the following texts:

The appellant: I love it when you’re screaming so loud as your orgasm

The appellant: You*

The complainant: Yeah, I’m kind of loud, I’m sorry

The appellant: It turns me on

The appellant: It makes me want to fuck you as hard as I can

The complainant: In the past people have told me I’m too loud

The appellant: They’re dumb

The appellant: I hate them

[11] The appellant testified that he was referencing the sexual activity of the morning of March 14, 2017. The complainant testified that she understood the appellant was referencing the sexual activity that occurred during the evening of March 13, 2017.

[18] Although indicating in her April 4, 2017 text that she “would love” a trip to the east coast with him, the next day the complainant told the appellant that she didn’t “have any money”; a few days later she said that she “would like to come” but didn’t know if she could. Ultimately, the appellant went on his own. Both testified that the relationship “fad[ed] out” after that.

[19] In the fall of 2017, the appellant and the complainant saw each other’s profile on Tinder. The appellant “super-liked” the complainant. She agreed during her cross-examination that she “liked” the appellant back, which, in Tinder parlance, indicated a willingness to be matched with him. No contact was made between them. The complainant testified that she had “liked” the appellant because she was under the impression that you had to “match” with someone on Tinder to report their sexual misconduct through the platform. The complainant did not end up reporting the appellant to Tinder, which she testified was because she “chickened out”

ISSUES

[22] This appeal raises three issues:

c. Did the trial judge err in treating the complainant’s apparent lack of animus toward the accused as a compelling reason to accept her evidence?

ANALYSIS

(b) Review of the trial judge’s reasons

[27] In my view, the trial judge’s misapprehension of the evidence went to the substance rather than to the detail of her reasons and was material rather than peripheral to her conclusions. Her misapprehension was not simply part of the narrative of her judgment but detrimentally affected the reasoning process that unfairly resulted in the appellant’s conviction.

(i) The appellant’s memory

[28] The appellant submits that the trial judge’s assessment of his evidence was flawed from the start because of her misapprehension of his evidence, which tainted the rest of her analysis and led her to reject his evidence. He highlights the following passage at paragraph 19 from the trial judge’s reasons where she criticizes the appellant’s evidence concerning the sexual activity in issue because of its detailed nature:

Rarely, if ever, have I heard such a detailed accounting of sexual activity. The level of detail provided by [the appellant] was curious juxtaposed to his evidence that his relationship with [the complainant] was nothing more than a casual, short fling. [The appellant] testified that he had relationships before and after [the complainant]. He said he had difficulty even recalling her at the time of his arrest some seven months later. Under those circumstances, I would expect some difficulty remembering specifics. Surprisingly, [the appellant] had no such difficulty.

[29] There are several difficulties evidenced by this paragraph.

[30] In the first sentence of this paragraph, the trial judge appears to apply a generalized standard as to how much detail witnesses should or should not express. This is not the correct approach. The assessment of any witness’s evidence requires a contextual approach based on all of the evidence at trial. Speculation about the level of detail a witness should provide is particularly dangerous when applied to accused persons because it risks shifting the burden of proof from the Crown to the defence and ignores the principles from R. v. W. (D.), [1991] 1 S.C.R. 742.

[31] Moreover, in R. v. A.K., 2020 ONCA 435, this court warned against drawing a negative credibility inference from an accused’s level of testimonial detail in the absence of independent, contradictory evidence. In this case, none of the detail the appellant provided about the sexual activity in issue was contradicted by independent, contradictory evidence. Only the complainant’s own equally detailed recollection of the events challenged some of the details provided by the appellant. There was also no evidence to suggest any of the detail that the appellant provided about what the trial judge characterized as “the more minor aspects of his time with [the complainant]”, such as walking or playing with his dog and not leaving the complainant alone in his apartment, was inaccurate. As in A.K., the trial judge “simply assumed because the description was detailed, it was fabricated by the appellant in an effort to buttress his credibility”: at para. 26.

[32] The trial judge’s erroneous analytical approach was compounded by her misapprehension of key evidence. She found it surprising that the appellant could recollect what she considered to be a suspect level of detail given her characterization of his evidence that “his relationship with [the complainant] was nothing more than a “casual, short fling” and his difficulty “even recalling her” at the time of his arrest. In the circumstances, she would have expected “some difficulty remembering specifics.”

[33] The trial judge’s analysis reflects material misapprehension of critical evidence given by the appellant. The appellant never testified that he could not recall who the complainant was at the time of his arrest. The police did not initially tell the appellant who his accuser was. The appellant testified that he could not think of who would accuse him of sexual assault in the timeframe the police provided him upon arrest. When he was later told who the complainant was at the police station, he remembered her but could not understand why she would accuse him of sexual assault....

[34] Further, the trial judge’s comment about the “curious” level of detail provided by the appellant in light of the short and casual nature of his relationship with the complainant is based on assumptions about how people should behave and think. Just because their relationship was short and casual did not mean that the appellant could not remember any details about the time spent with the complainant. The trial judge’s assumptions were not supported by the evidence....

[35] The trial judge’s errors are not trivial. They drove and coloured her analysis. Her reasons demonstrate that her suspicion of the appellant’s ability to recall detail about the sexual activity in issue, the key evidence in the case, as well as “even the more minor aspects of his time with [the complainant]”, was one of the fundamental bases for her rejection of the appellant’s “version of events” and why she was “not left in a reasonable doubt by it.”

(ii) Text messages of March 14, 2017

[42] It is clear that the missing texts that the trial judge did not include add an exculpatory aspect to the narrative that the trial judge should have addressed, in particular the following, starting at 4:14 p.m.:

The complainant: Thank you for making me dinner and cocktails. I had a really great time

The appellant: 🙂

The appellant: I didn’t want you to leave

The appellant: I wasn’t that impressed with vertigo

The appellant: I mean it was great but his obsession was really starting to get on my nerves

The complainant: I didn’t really want to leave

[44] These missing texts were very important to the text message narrative and in understanding the appellant and the complainant’s relations. They represented the appellant and the complainant’s last exchange on March 14, 2017 about the events that took place that morning. On their face, they belied the complainant’s later allegations of sexual assault. The trial judge’s truncation of the text messages resulted in a serious distortion of the evidence that she should have considered in its entirety.

[49] The trial judge rejected the position asserted by defence counsel at trial that the complainant “was holding out by not providing all the text messages up front.” The trial judge exonerated the complainant, finding that “[t]he retrieval of the text messages was the responsibility of the police or possibly the Crown but certainly not [the complainant].” She added that it was not for the complainant “to decide what was relevant or helpful for the purposes of a criminal trial.”

(2) Uneven scrutiny of the evidence

[52] The appellant submits that the trial judge erred in subjecting the defence evidence to more rigorous scrutiny than Crown evidence.

[53] In my view, the appellant has succeeded in demonstrating that the trial judge showed a tolerant and relaxed degree of scrutiny of the complainant’s evidence, as compared to the harsh lens that she trained on the appellant’s evidence. This rendered the trial unfair.

(a) Standard of review

[54] Uneven scrutiny as a ground of appeal is “notoriously difficult to prove”, as the Supreme Court recently observed in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99. 2

[55] To make out this ground of appeal, an appellant must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied, as well as something sufficiently significant, such as rejecting the appellant’s testimony for speculative reasons, to displace the deference due to a trial judge’s credibility assessments: R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 19. Uneven scrutiny may be another way of expressing that the trial judge erred in principle in some manner in making an assessment of credibility: R. v. Greif, 2021 BCCA 187, 406 C.C.C. (3d) 39, at para. 82, leave to appeal refused, [2021] S.C.C.A. No. 182.

(b) Review of the trial judge’s reasons

[57] In my view, the appellant has demonstrated that the trial judge applied a much harsher lens to his evidence than to the complainant’s. The following examples suffice to make this point, some of which I have already discussed under the misapprehension of evidence ground.

(i) Level of testimonial detail

[58] As earlier indicated, the trial judge found the appellant’s account of the sexual activity suspect because of its detail and applied speculative assumptions about how witnesses should give their evidence. She had no such difficulty with the complainant’s equally detailed account of the sexual activity.

[61] The difficulty here is not that the trial judge rejected the appellant’s account of the sexual activity and accepted the complainant’s version. The error is the clear uneven scrutiny: the trial judge criticized the appellant’s evidence as contrived because of its detail but accepted the exact same level of detail in the complainant’s version as a mark of credibility and reliability, without explaining why she drew this distinction based on the same factor.

(ii) Uneven characterization of the evidence

[62] .....Moreover, she relied on minor matters to reject the appellant’s credibility and reliability, concluding that “[b]eing committed to unreasonable positions on peripheral events was a consistent theme in [the appellant’s] evidence that, in [her] view, impinged on his credibility and reliability” and that as she listened to his evidence, “once he was committed to a particular narrative he was prepared to stick to it no matter how nonsensical his responses became.” Respectfully, the record does not support those conclusions.

[63] The trial judge started with three minor examples that were entirely irrelevant to the charge. First, the appellant testified that he never went on a walk with his dog and the complainant although he did testify that he walked the dog with her to wait for her Uber pickup. Second, he never showed her the dog’s tricks. Third, he never left the complainant alone in his apartment, not even to take the dog out.

[65] The trial judge also seized on the appellant’s evidence about the proposed trip out east. She ignored the text messages the complainant sent the appellant on April 4, 2017 and April 12, 2017 indicating that she would “love to go to Newfoundland”, and that she would “really like to go” on the trip but did not know if she could; instead, the trial judge accepted the complainant’s contradictory evidence that she had no intention of going on a trip with the appellant, and stated she “was not sure what to make of [the appellant’s] evidence.” She found it “curious” that the appellant felt a real sense of frustration and disappointment that the complainant did not give him a definitive answer because there was nothing in their communications “that would warrant the type of frustrated response that [the appellant] testified about.” As a result, she found this to be “yet another internal inconsistency in [the appellant’s] evidence albeit collateral to the facts in issue.”

[67] The only explanation for the trial judge’s conclusions is that she did not view the appellant’s evidence with fairness. Rather, her approach constantly required the appellant to explain himself. This reversed the burden that lay squarely with the Crown.

[68] Moreover, the trial judge’s assessment of the appellant’s evidence contains assumptions about how the appellant should have behaved, including how often he should have walked his dog, and how he should have given his evidence. As already discussed, it is an error for a trial judge to make a negative credibility finding based on stereotypical assumptions or generalizations that are not supported by the evidence: R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, at para. 64; MacIsaac, at para. 46; Morrissey, at pp. 530-31.

[69] In stark contrast to her treatment of the appellant’s evidence, the trial judge tolerated and failed to analyze serious discrepancies in the complainant’s evidence. I refer to the following salient examples.

[70] The trial judge’s unexplained selective excerpting of the March 14, 2017 text exchange between the appellant and the complainant is an important example of the trial judge’s uneven scrutiny of the evidence. The excerpt favoured the complainant’s version of events to the detriment of the appellant. The trial judge’s failure to analyze the potentially exculpatory passages that she omitted from her consideration resulted in an entirely one-sided perspective that contravened her obligation to look at the evidence in its entirety through the lens of the W. (D.) principles.

[71] While a trial judge is not obliged to give all the reasons that led her to the conclusion that an accused is guilty, it is well established, as the Supreme Court instructed in Ungaro v. The King , [1950] S.C.R. 430, at p. 432, that “[i]t is imperative, however, that [the trial judge] should give a decision upon all the points raised by the defence which might be of a nature to bring about the acquittal of the accused.” [Emphasis by PJM]

[75] The trial judge rejected the appellant’s evidence that the March 20, 2017 text exchange referenced part of the sexual activity that took place the morning of March 14, 2017 and accepted the complainant’s testimony that it was about a different time. She concluded “for reasons that follow, that if [the complainant] had performed fellatio on [the appellant] that morning, she would have admitted it” and that she was “not prepared to rely upon [the appellant’s] memory of events” (emphasis added). But the reasons did not follow. Instead, the trial judge went on to assess unrelated portions of the complainant’s evidence without ever explaining her conclusion that the complainant would have admitted to performing fellatio on the appellant on March 14, 2017 if she had.

[76] This was an error. While it was open to the trial judge to accept the complainant’s evidence and reject the appellant’s “memory of events”, the trial judge was required to explain her reasons for doing so with respect to a critical piece of evidence, especially as she indicated that she would do so. Absent her reasons, her conclusory statement that the complainant would have admitted to performing fellatio is inadequate and evidences a tendency to accept the complainant’s evidence at face value without meaningful scrutiny.

[77] I turn next to the trial judge’s uneven assessment of the appellant’s and complainant’s credibility and reliability in relation to collateral matters. In contrast to the trial judge’s rejection of the appellant’s evidence because of trivial inconsistencies that she found arose from minor events, the trial judge ignored inconsistencies in the complainant’s evidence, including between her trial testimony and admitted text message exchanges with the appellant. A significant example concerns text messages from March 24 and 25, 2017, which appear to contradict the complainant’s evidence that she stayed overnight with the appellant on March 28, 2017, having sandwiches the next day, and which support the appellant’s evidence that they had sandwiches together on March 24 and not March 29, 2017, and that the appellant did not stay overnight on March 28, 2017. The trial judge did not address the March 24 and 25, 2017 text messages. Rather than grappling with the apparent inconsistency between the contemporaneous record provided by these text messages and the complainant’s account at trial, the trial judge wrote that she “[didn’t] know if [the complainant] stayed over at [the appellant’s] place on March 28, 2017 or another night after the incident of March 14, 2017”, and that she “accept[ed] that she believes she did” and that “[t]he fact that there is no confirmation in the form of a text message is of no moment.”

[79] The trial judge never critically addressed the considerable weaknesses in the complainant’s evidence, nor did she meaningfully consider evidence that corroborated the appellant’s account of relevant events. Had the trial judge applied as exacting a standard of scrutiny to the complainant’s testimony as she imposed on the appellant, she might well have been left with a reasonable doubt: R. v. Kiss, 2018 ONCA 184, at para. 86. Failing to conduct a critical assessment of testimonial weaknesses that could undermine the Crown’s evidentiary foundation on an essential element of the offence can be indicative of uneven scrutiny: Roth, at para. 142. In my view, that is what occurred here.

(3) Apparent lack of animus

[80] The appellant contends that the trial judge erroneously relied on the complainant’s apparent lack of animus as a compelling reason for accepting the complainant’s testimony. I agree that the trial judge’s reasons on this issue reveal error.

[81] In support of her acceptance of the complainant’s evidence “in its entirety”, the trial judge found that “[o]ne of the compelling aspects of [the complainant’s] evidence was the lack of animus directed towards [the appellant] during her testimony. There was not even a hint of vengeance towards [the appellant] in her evidence.” [Emphasis by PJM]

[82] As this court recently instructed in R. v. G.B., 2021 ONCA 675, at para. 18, “trial judges must approach an apparent lack of motive to fabricate with great caution when assessing the credibility of a complainant.” This caution arises out of the well-established distinction between an absence of evidence of a motive to fabricate on the one hand, and, on the other hand, a proven absence of a motive to fabricate. While the proven absence of motive might give affirmative weight to a witness’s testimony in a trial judge’s credibility assessment, the absence of any evidence of a motive to fabricate is a neutral factor and cannot be used to enhance a witness’s credibility. This is because the fact that a complainant has no apparent motive to fabricate does not mean that a complainant has no motive to fabricate. Reasoning from the apparent absence of a motive to fabricate undermines the presumption of innocence by reversing the burden of proof and fails to recognize that motives to mislead can be hidden. See: R. v. Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, at paras. 4-5, R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at para. 44; R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 22-23; R. v. S.H., 2020 ONCA 34, at para. 11; R. v. A.S., 2020 ONCA 229, at para. 59.

[83] In the present case, it was not argued nor did the trial judge find that there was a proven absence of a motive to fabricate on the part of the complainant. Rather, the trial judge appears to reference the lack of evidence of any apparent motive based on her observation that the complainant did not demonstrate “a hint of vengeance” toward the appellant in her testimony.

[84] By this, the trial judge fell into the reasoning error that the absence of any appearance of animus or motive equated to the absence of motive. She erred by using the absence of any evidence of motive as a makeweight in her assessment of the complainant’s credibility.

[85] This was not a trivial error. I do not accept the Crown’s argument that in instructing herself “not to place much emphasis” on the complainant’s demeanour, the trial judge properly restricted the weight she afforded to the complainant’s apparent lack of animus.

[88] Second, even if the trial judge had properly instructed herself on demeanour evidence, her reasons reveal that she in fact placed significant weight on the complainant’s apparent lack of animus. This observation was the culmination of her analysis of the complainant’s evidence and immediately preceded her conclusion that for this and the other reasons she gave, the trial judge accepted the complainant’s evidence in its entirety. The trial judge clearly used this factor to enhance the complainant’s credibility and it was one of the key building blocks in her acceptance of the complainant’s evidence.

DISPOSITION

[89] While credibility and reliability findings are the province of the trial judge and attract a very high degree of deference on appellate review, this does not mean that an appellate court can abdicate its responsibility for reviewing the record to see if a trial judge’s assessment of the evidence is materially flawed and resulted in an unfair trial. The question is whether the trial judge took a balanced approach to the process by which she arrived at her credibility findings, not whether she rightly accepted the complainant’s version of events.

[90] I am mindful that appellate courts should not finely parse the trial judge’s reasons in a line-by-line search for errors but must read them as a whole, in the context of the evidence, the issues and the arguments at trial: G.F., at para. 69; R. v. Chung, 2020 SCC 8, 443 D.L.R. (4th) 393, at para. 13. In this case, when read as a whole, the trial judge’s reasons reveal that her assessment of the evidence was not balanced and her analytical errors, in their cumulative effect, detrimentally impacted her reasoning process throughout and her decision, rendering the conviction unsafe. Appellate intervention is therefore required.

[91] For these reasons, I would set aside the conviction and order a new trial. “PDL”

Sentencing: Principles and Practice

By Danielle Robitaille & Erin Winocur

Building on general principles, this text tackles both common and unusual sentencing issues and questions, and pragmatically discusses plea negotiations, procedure and advocacy, dangerous offenders, types of sentences, Charter considerations, appellate issues, and ancillary orders, as well as post-sentencing issues.

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