R v Wolfe, 2021 SKCA 39

Docket: CACR3236 Between:Gregory WolfeAppellantAndHer Majesty the QueenRespondentDocket: CACR3179 Between:Colinda HotomaniAppellantAndHer Majesty the QueenRespondent Court of Appeal for Saskatchewan Citation: R v Wolfe, 2021 SKCA 39Date: 2021-03-16 Before: Caldwell, Schwann and Kalmakoff JJ.A.Disposition: Appeals dismissedWritten reasons by: The Honourable Mr. Justice KalmakoffIn concurrence: The Honourable Mr.

Justice Caldwell The Honourable Madam Justice SchwannOn appeal from: CRM 310 of 2017 (QB), ReginaAppeal heard: January 14, 2021Counsel: Marianna Jasper for Gregory Wolfe Thomas Hynes for Colinda Hotomani Alan McIntyre, Q.C., for SLIA on behalf of Trial Counsel W. Dean Sinclair, Q.C., for the Respondent Kalmakoff J.A. I. INTRODUCTION [1] A jury found Gregory Wolfe and Colinda Hotomani guilty of murder for the killing of Ryan Sugar. Mr. Wolfe was convictedof first degree murder; Ms. Hotomani of second degree. They both appeal their convictions. Mr.

Wolfe also applies to introduce freshevidence on the appeal. [2] Mr. Wolfe says three things, either individually or in combination, resulted in a miscarriage of justice in his case: (

i) animproper closing address by Crown counsel; (ii) inadequate jury instruction by the trial judge; and (iii) ineffective representation from hislawyer. Mr. Wolfe applies to adduce fresh evidence in relation to the ineffective counsel argument. [3] Ms. Hotomani argues that, as it relates to her, the verdict was unreasonable.

She also says the trial judge failed to properlyinstruct the jury with respect to the partial defence of provocation and erred by declining to provide the jury with a Vetrovec caution (R vVetrovec, (SCC), [1982] 1 SCR 811) regarding one of the Crown’s witnesses. [4] For the reasons that follow, I would dismiss Mr. Wolfe’s application to admit fresh evidence and dismiss both appeals. II. FACTUAL BACKGROUND [5] On October 4, 2016, Mr. Sugar, Ms. Hotomani and Jessica Pangman were together at 1555 McTavish Street in Regina. Thatwas where Ms. Hotomani and Ms. Pangman were living at the time.

Throughout the afternoon and evening, the three of them drankalcohol and used crystal methamphetamine. Later in the evening, Mr. Wolfe came to the house. He had met Ms. Pangman and Ms.Hotomani only a few days prior. Mr. Wolfe joined in the gathering, and helped the others secure more alcohol by shoplifting it from anearby liquor store. For the most part, everyone got along. [6] At some point, however, Ms. Pangman, Ms. Hotomani and Mr. Wolfe all fell asleep or passed out. Ms. Hotomani awoke tofind Mr. Sugar on top of her, trying to engage in sexual activity. Ms.

Hotomani threw him off and went to the bedroom where Ms.Pangman was sleeping. She said Ms. Pangman had no pants on. When Ms. Hotomani woke her up and told her what had happened,Ms. Pangman became upset, believing she, too, may have been sexually assaulted. She was especially concerned because she believed Mr.Sugar to be HIV positive. [7] Ms. Hotomani then woke Mr. Wolfe up and told him what had happened. Mr. Wolfe took Mr. Sugar into the bathroom of the

house and a physical confrontation took place. [ 8 ] According to Ms. Pangman’s testimony at trial, after this confrontation, Mr. Sugar came out of the bathroom and was apologizing to those present. She said that Ms. Hotomani passed a vodka bottle to Mr. Wolfe, and Mr. Wolfe struck Mr. Sugar on the head with it, causing him to bleed profusely. Ms. Hotomani then began punching Mr. Sugar. Ms. Hotomani also handed Mr. Wolfe a knife, which Mr. Wolfe used to slice Mr. Sugar’s chest, stomach and arms. Mr. Sugar continued to apologize and asked them to stop, while he retreated to the bathroom. Mr.

Wolfe then sprayed aerosol oven cleaner around the door frame and attempted to light it on fire. When Mr. Wolfe complained that it would not ignite, Ms. Hotomani found a bottle of lice treatment rinse and sprayed it on a pillow that Mr. Wolfe was trying to light. The pillow ignited. Mr. Wolfe then moved a large projection television in front of the bathroom door. Ms. Pangman testified that she observed Mr. Wolfe trying to hold the television in such a way as to block Mr. Sugar’s exit from the bathroom, while Mr. Sugar tried to push his way out. [ 9 ] According to Ms. Pangman’s testimony, she and Ms.

Hotomani left the house at this point and Mr. Wolfe followed a short time later. As they left, Ms. Pangman observed that there was a lot of black smoke from the fire and the television was melting. She could also see that Mr. Sugar had gotten out of the bathroom and had moved to a back bedroom in the southeast corner of the house. He was covered in blood and asking for help. [ 10 ] Ms. Pangman, Mr. Wolfe and Ms. Hotomani left and went to another residence several blocks away. They asked the persons there to assist them in constructing an alibi. Some time later, Ms. Pangman and Mr.

Wolfe returned to the house at 1555 McTavish Street, along with a person named Christopher Kane. Both Ms. Pangman and Mr. Wolfe entered the house, but they could not see Mr. Sugar. Ms. Pangman said she did not see any flames at this point either, but it was so smoky that she could not see much of anything and found it difficult to breathe. [ 11 ] Mr. Kane testified that Mr. Wolfe told him he had to “take care of” Mr. Sugar because Mr. Sugar had sexually assaulted Ms. Pangman. According to Mr. Kane, Mr. Wolfe said this had involved beating Mr.

Sugar with a shower curtain rod and slashing him with a knife, before barricading him in the bathroom, lighting the door on fire and telling him he was going to die in there. [ 12 ] At around 3:30 a.m., the Regina Fire Department was dispatched to 1555 McTavish Street. The house was fully engulfed in flames at that point. Shortly after the firefighters arrived, part of the roof and the chimney collapsed in the area around the bathroom and southeast bedroom doors.

Firefighters were able to extinguish the fire but, because of the amount of damage the fire had done to the house, were unable to access the southeast bedroom. [ 13 ] Mr. Sugar’s body, which was in the southeast bedroom, was not found until October 11, 2016, after police had received information that he was missing. While Mr. Sugar did not suffer any significant burns, he had died in the fire, from smoke inhalation and carbon monoxide poisoning. [ 14 ] A fire examiner determined that the fire which destroyed the house at 1555 McTavish Street, and claimed Mr. Sugar’s life, had been deliberately set.

The point of origin was the bathroom door. III. THE APPEAL OF GREGORY WOLFE [ 15 ] In his notice of appeal, Mr. Wolfe alleges that his conviction was a miscarriage of justice arising from: (

i) a “functionally inadequate jury charge”; and (ii) “ineffective assistance of counsel at trial”. Based on Mr. Wolfe’s factum and the manner in which his arguments were presented during the appeal hearing, the determination of whether he suffered a miscarriage of justice requires consideration of the following questions: (

a) Was Crown counsel’s closing address to the jury improper and, if so, did the trial judge fail to provide an adequate correcting instruction? (

b) Did the trial judge fail to provide proper instruction in relation to evidence that was crucial to Mr. Wolfe’s defence? (

c) Did the trial judge fail to accurately explain Mr. Wolfe’s theory of the case to the jury? (

d) Was the representation Mr. Wolfe received from trial counsel ineffective? [ 16 ] Section 686(1)(a)(iii) of the Criminal Code permits this Court to allow an appeal from conviction where it is of the opinion that “on any ground there was a miscarriage of justice”. Miscarriage of justice is a “flexible term which comprehends a range of situations” ( R v Moosomin , 2008 SKCA 168 at para 25 , 239 CCC (3d) 326 [ Moosomin ] ) .

Where a person seeks to overturn a conviction by alleging a miscarriage of justice, he or she bears the burden of demonstrating his or her entitlement to a new trial on that basis ( Moosomin at para 27 ).

This does not necessarily require demonstrating legal error on the part of the trial judge; a miscarriage of justice can result from any irregularity or combination of irregularities that is severe enough to render the trial unfair or create the appearance of unfairness ( R v Davey , 2012 SCC 75 at paras 50-51 , [2012] 3 SCR 828 [ Davey ]; R v Khan , 2001 SCC 86 at para 69 , [2001] 3 SCR 823 [ Khan ] ). [ 17 ] The miscarriage of justice ground of appeal is concerned with the fairness of an accused person’s trial.

A trial does not need to be perfect, provided it remains fair in reality and in appearance ( Khan at para 72 ). The test under s. 686(1)(a)(iii) requires that an appeal court examine whether a well-informed, reasonable person, considering the whole of the circumstances would have perceived the trial as unfair or appearing to be so ( R v Rogal , 2018 SKCA 18 at para 49 , 410 CRR (2d) 248). [ 18 ] Allegations of ineffective legal representation also bring into play the concept of miscarriage of justice.

Where an appeal from a conviction is based on an allegation of incompetent legal counsel, in order to succeed, the appellant must establish that the ineffective representation resulted in procedural unfairness or that it may have compromised the reliability of the verdict, i.e., that there has been a miscarriage of justice ( R v Belcourt , 2020 SKCA 73 at para 48 , 389 CCC (3d) 303 [ Belcourt ] ; R v Regnier , 2017 SKCA 83 [ Regnier ] ) .

[19] I turn now to consider the questions raised by Mr. Wolfe’s appeal. A. Was Crown counsel’s closing address to the jury improper and, if so, didthe trial judge fail to provide an adequate correcting instruction? [20] Mr. Wolfe and Ms. Hotomani were charged and tried jointly. Most of the evidence led by the Crown was admissible againstboth of them. [21] However, the Crown also led evidence of out-of-court statements attributed to Mr. Wolfe, including things he said during andabout the events in question to Ms. Pangman and Mr. Kane. In addition, the Crown entered a statement that Ms.

Hotomani gave, followingher arrest, to Cpl. James Collins of the Regina Police Service, and led evidence of things she said during and about the events in questionto Joseph Oakes, Nolan Sugar and Shayne Mathieson. [22] Subject to certain exceptions that do not apply in this case, the general rule is that, in a joint trial, an out-of-court statementmade by an accused person is admissible as evidence only against that person, and inadmissible against the co-accused (R v Largie, 2010ONCA 548 at para 85, 258 CCC (3d) 297; leave to appeal to SCC refused, , ; R v Settee, (SK CA), [1975] 3 WWR 177 (Sask CA)).

An out of court statement made by one accused cannot be used to confirm theevidence of a witness in relation to a co-accused who is not the maker of the statement (R v C.(B.) (1993), (ON CA), 80CCC (3d) 467 (Ont CA)). Nor can it be used in favour of a co-accused who is not the maker of the statement, even if it is exculpatory inrelation to that co-accused (R v Unger (1993), (MB CA), 83 CCC (3d) 228 (Man CA)). [23] Mr.

Wolfe submits that the Crown’s closing address to the jury was unfair and overly prejudicial because it summarized andhighlighted the evidence upon which the Crown relied on an “issue-by-issue” basis, rather than an “accused-by-accused” basis. Inparticular, Mr. Wolfe points to these portions of Crown counsel’s closing remarks: I suggest to you it was Colinda Hotomani who turned up the temperature in that house, and I mean so as a figure of speech. JessicaPangman told you it was Ms. Hotomani who raised allegations against Mr. Sugar first, and Ms. Pangman believed her. Ms.

Hotomani'sstatement to Sergeant Collins tends to confirm that. It was Colinda Hotomani who woke Gregory Wolfe up. Ms. Hotomani admits to muchof this herself. Both Ms. Pangman and Ms. Hotomani admitted they encouraged Greg -- Greg Wolfe to assault Ryan Sugar. When the fire wouldn't start, the evidence is Mr. Wolfe said so. Ms. Pangman said Mr. Wolfe said it's not working, it's not lighting. Andthen Ms. Hotomani went through the living room to the kitchen and grabbed another substance. Ms. Hotomani admits to this. Rememberhow clear and forceful Ms. Pangman was about this detail on cross-examination.

She was very clear she saw Colinda Hotomani get thatbottle, return to the hallway, and spray the liquid, and that the blaze immediately sparked. Again, picture what that scene must have beenlike. … Again, Ms. Hotomani told Sergeant Collins she heard Mr. Sugar calling Jessica for help, and that's when they left. Ask yourselves whywas Ryan Sugar calling for help? Use your common sense when you consider that point. He was calling for help because he didn't knowhow to get [out]. He couldn't get out. And he was in a house that was filling up with smoke. So when you ask yourselves if Mr. Wolfe and Ms.

Hotomani respectively had the intent to kill when they started that fire, think about thatscene. Did they think he was going to get [out]? Did they think he was fine? Of course, they didn't. Did they want him to get out? Ofcourse, they didn't. Consider the admissions made by Ms. Hotomani in her statement to the police and how closely they matched what Ms. Pangman saidabout what Ms. Hotomani did, passing a blade, striking Mr. Sugar, encouraging the assault, retrieving a spray bottle from the kitchen, alsothe trip to eight-block Elphinstone Street, the trip back to 1555 McTavish, the conversation with Joseph Oakes.

All of these pieces ofevidence that were testified to by Jessica Pangman were corroborated. Ms. Pangman told us that her and Colinda discarded a bladed weapon thereafter in a garbage can. Colinda Hotomani referred to the samething in her statement to the police saying the knife that was used was discarded in a garbage downtown. I suggest to you that nearlyeverything that Jessica Pangman said was confirmed or corroborated by other evidence, either physical or in the course of other witnesstestimony. Her evidence, I submit to you, was compelling and believable.

I believe you should accept it. … So when you’re asked to question, doubt, or disregard the evidence of Crown witnesses, consider the strength and believability of theirtestimony and, in particular, consider all of the corroborative -- corroborative evidence. … So to conclude, ladies and gentlemen, please fall back on your common sense in deliberating your verdict. Consider the evidence as awhole, not piece by piece. And ask yourselves, are you sure of the answers to the questions that I’ve just put to you and the questions theJudge will put to you.

Ladies and gentlemen, I suggest that you should be sure because that is what the evidence tells us about whathappened in this case. [24] Mr. Wolfe contends that, by putting the argument to the jury in this way and by failing to separate or identify the evidence thatwas admissible only against Ms. Hotomani (namely, her out of court statements) from that which was admissible only against him, Crowncounsel effectively misled the jurors and left them with the understanding that they could consider evidence not properly admissibleagainst him in deciding his case. Mr.

Wolfe submits that Crown counsel had a duty to explain that certain evidence was only admissibleagainst one accused or the other where that was the case. Mr. Wolfe argues that Crown counsel’s invitation for the jurors to use their

common sense in deliberating the verdict and to consider “the evidence as a whole, not piece by piece” was tantamount to an invitation to disregard the law as it relates to the proper evidential use of out of court statements by accused persons in a joint trial. The effect of such an approach, he says, was so prejudicial as to render his trial unfair. [ 25 ] Mr. Wolfe also asserts that the trial judge, in light of this, had a duty to make it clear to the jury that the Crown’s address was improper and to provide an adequate correcting instruction.

He says the trial judge failed in both of these duties and, in the result, the fairness of his trial was compromised. In other words, a miscarriage of justice occurred. [ 26 ] As I will explain, I reject this argument. [ 27 ] Where it is alleged that the Crown’s closing submissions at trial were inappropriate, the critical question for the appeal court is whether what was said rendered the trial unfair or created the appearance of unfairness.

As set out above, this question is evaluated on the standard of a well-informed reasonable person considering the whole of the circumstances ( Khan at para 73 ; Davey at paras 50-51 ; see also R v Tokaryk, 2019 ABCA 439 at para 15 ) .

To determine this issue, an appellate court “must consider what was said in the milieu in which it was said: the context of the entire trial; the impugned remarks; and the nature and extent of any judicial response” ( R v Manasseri , 2016 ONCA 703 , at para 106 , 344 CCC (3d) 281 [ Manasseri ] ) . [ 28 ] I see nothing in the record that even remotely supports a conclusion that Crown counsel’s submissions in this case rendered the trial unfair or created the appearance of unfairness.

It is correct to say that Crown counsel is not entitled to invite the jury to use evidence in a legally impermissible way to reach its verdict (see: R v McGregor, 2019 ONCA 307 at para 180 , 145 OR (3d) 641). However, I am not aware of any authority that supports Mr. Wolfe’s contention that the Crown is required to structure its closing argument in a certain way or to explain the finer points of the law of evidence to the jury in a joint trial. [ 29 ] I also do not read the prosecutor’s submissions in this case as inviting the jury to use the evidence in a legally impermissible way.

In making his closing argument, Crown counsel invited the jurors to use their common sense and to consider the evidence as a whole. There is nothing improper in that. While Crown counsel did not specifically identify which bits of the evidence that he highlighted were admissible only against one accused and not the other, he also never explicitly invited the jury to use any evidence in an impermissible way. Furthermore, from the outset of his submissions, Crown counsel made it clear that the jury was required to follow the trial judge’s instructions on the law.

In that regard, he said: If you accept these events happened as we all just heard them described by the witnesses, and if you follow the legal instructions that are provided to you by the Judge , I am confident that you will return first degree murder verdicts… … Of course, the judge will instruct you on the law, and her instructions about the law are what matter. [ 30 ] After Crown counsel finished his closing address, neither counsel for Mr. Wolfe nor Ms. Hotomani raised any objection or any concern with the trial judge regarding the nature of the Crown’s submissions.

While the failure to object “erects no unscalable barrier to appellate success” ( Manasseri , at para 107 ), it is a relevant factor in determining whether submissions made by Crown counsel affected the fairness of the trial. [ 31 ] Finally, even if Crown counsel’s submissions could be seen as having created any confusion about whether evidence of out-of- court statements made by one accused were admissible against the other, the trial judge provided complete and appropriate instruction on the manner in which the jury could use out-of-court statements to decide the case. [ 32 ] Before the Crown tendered Ms.

Hotomani’s statement in evidence, the trial judge provided the jury with a mid-trial instruction about the use that could be made of it. That instruction was legally correct and clearly explained to the jury that it could not use anything Ms. Hotomani had said as evidence against Mr. Wolfe. [ 33 ] Then, in her final instructions, the trial judge repeated the legal instruction regarding the use to be made of out-of-court statements of the accused and related that instruction, individually, to each of the witnesses to whom it applied. Specifically, she advised the jury that anything Ms.

Hotomani said in her warned police statement, and any statements she made to Mr. Oakes or Mr. Mathieson were admissible as evidence only against Ms. Hotomani and were not admissible against Mr. Wolfe. The trial judge also advised the jury that evidence of anything Mr. Wolfe said to Mr. Kane was admissible only against Mr. Wolfe. In each instance and in relation to each witness, the trial judge also gave examples of the type of evidence to which the instruction pertained.

Her instructions in that regard were clear, comprehensive and legally correct. [ 34 ] The trial judge also clearly explained to the jury the legal principles that applied to the assessment of evidence in joint trials, including the need to consider the evidence separately against each accused person and the right of each accused to an individual verdict based only on the evidence and legal principles that apply to them. In that respect, she said: [Y]ou must give a separate verdict for each person charged.

You must make your decision about each person based on the evidence and the legal principles that apply to him or her, as I will be explaining in these instructions. Each person charged is presumed innocent. It is for you to say for each of them whether the Crown has proved his or her guilt beyond a reasonable doubt on the evidence and according to the legal principles that apply to that person.

You must consider all of the evidence that has been presented with respect to the charge against Gregory Wolfe, apply the law as I tell it to you as it relates to Gregory Wolfe, and make your decision as to whether his guilt has been proved beyond a reasonable doubt. It does not necessarily follow that you must arrive at the same decision with respect to Colinda Hotomani. After you have made your decision with respect to Gregory Wolfe, you will follow the same process with Colinda Hotomani.

Consider all of the evidence that has been presented with respect to the charge as it relates to her, and apply the law as I tell it to you, and determine whether her guilt has been proved beyond a reasonable doubt.

You may discuss the case of each accused person in a different order, either Mr. Wolfe first and Ms. Hotomani second, or the reverse. Mypoint is only that you consider each accused separately. [35] Later in the instructions, the trial judge said this: Mr. Wolfe and Ms. Hotomani are charged and are being prosecuted jointly.

As I've told you many times, you must consider the evidenceagainst each accused separately and give a separate verdict for each accused based on the evidence that relates to him or her. [36] Still later, after discussing the legal concept of parties to an offence, the trial judge added: It is important to remember throughout that although Gregory Wolfe and Colinda Hotomani have been charged and are being triedtogether, each is a separate individual who cannot be found guilty of any offence unless the evidence relating to him or her proves his orher guilt of that offence beyond a reasonable doubt.

Each person is entitled to separate consideration. Each person is entitled to have his orher case decided based on his or her own conduct and state of mind and from the evidence that may apply to him or her. [37] It is also notable that, when she provided the jury with instruction regarding the elements of the offence that the Crown wasrequired to prove against Mr. Wolfe, and when she reviewed the evidence in relation to those elements, the trial judge did not refer to anyof the evidence that was only admissible against Ms. Hotomani.

Once she had completed her instruction relating to the charge against Mr.Wolfe, the trial judge began her instruction regarding the charge against Ms. Hotomani by saying that the jury would be required to followthe same steps in its deliberations, except the evidence “is only going to be the evidence that…concerns Ms. Hotomani and that isapplicable to Ms. Hotomani”. [38] In light of all of that, this aspect of Mr. Wolfe’s argument simply cannot succeed.

I am not persuaded that Crown counsel’sclosing submissions were in any way inappropriate and, even if they had been, the trial judge provided a comprehensive instruction on theissue of out-of-court statements, so that the fairness of Mr. Wolfe’s trial was not affected. B. Did the trial judge fail to provide proper instruction in relation to evidencethat was crucial to Mr. Wolfe’s defence? [39] The Crown’s position at trial was that Mr. Wolfe and Ms. Hotomani had both actively participated in assaulting and confiningMr.

Sugar and in starting the fire that ultimately caused him to die from smoke inhalation, as part of one continuous series of events,during which Mr. Sugar had remained confined from the time he entered the bathroom until he died. The Crown asserted that Mr. Wolfeand Ms. Hotomani had acted deliberately, acted together, and intended the logical consequences of their actions. [40] Mr. Wolfe argued at trial that he should be found guilty only of manslaughter because he did not intend to kill Mr. Sugar oreven to cause him bodily harm that was likely to cause death. While Mr. Wolfe admitted that he had assaulted Mr.

Sugar in the bathroomof the house, he argued that this had “settled their differences” and that he had no continuing animosity toward Mr. Sugar and no motive tocause him further harm. He also contended that Mr. Sugar was no longer confined once he left the bathroom under his own power. [41] Mr. Wolfe says the trial judge’s review of the evidence was inadequate because she failed to relate to the jury key aspects ofthe evidence that supported his defence and, as a result, the jury was not properly equipped to make the findings necessary to decide thecase.

This led, in his view, to a miscarriage of justice. [42] As I understand Mr. Wolfe’s argument, it is that the trial judge failed to draw the jury’s attention to evidence that was relevantto the questions of whether he had the intent necessary to be guilty of murder and whether Mr. Sugar was actually confined at the relevantpoint in time so as to elevate murder to first degree murder. Such evidence, says Mr. Wolfe, included varying accounts about the extentand intensity of the fire, evidence concerning Mr. Sugar’s ability to move about the house after leaving the bathroom, and evidence thatsuggested Mr.

Sugar had potential avenues of escape. The effect of this error, says Mr. Wolfe, is that the jury did not understand thesignificance of evidence that tended to raise a doubt about whether he was guilty of murder. [43] In analysing Mr.

Wolfe’s arguments under this heading, it is useful to begin with a brief examination of the legal principles thatpertain to appellate review of jury instructions. [44] A person charged with a criminal offence and tried by a jury is entitled to a properly, not perfectly, instructed jury (R vJacquard, (SCC), [1997] 1 SCR 314 at para 2 [Jacquard]; R v Araya, 2015 SCC 11 at para 39, [2015] 1 SCR 581).Appellate review of the adequacy of jury instruction requires a functional approach, asking whether the charge read as a whole properlyequipped the jury to decide the case according to the law and the evidence (R v Barton, 2019 SCC 33 at para 54, [2019] WWR 191; R vCalnen, 2019 SCC 6 at para 8, [2019] 1 SCR 301 [Calnen]; R v Mack, 2014 SCC 58 at para 49, [2014] 3 SCR 3; R v Jaw, 2009 SCC 42 atpara 32, [2009] 3 SCR 26). [45] In R v Naistus, 2019 SKCA 4 at para 21 [Naistus], Caldwell J.A. explained that, when reviewing the adequacy of a jury charge,“appellate courts must examine the whole of the jury’s instructions to assess whether they achieve their purpose, namely to equip the trierof fact with the tools necessary to make the findings required in the case at hand”.

This means, when all is said and done, the charge mustleave the jury with an understanding of: (

i) the factual issues to be determined; (ii) the legal principles relating to the factual issues and theevidence; (iii) the position of the parties; and (iv) the evidence relevant to the position of the parties on the various legal issues (R v Knox,2017 SKCA 8 at para 16, 36 CR (7th) 89 [Knox]; R v Daley, 2007 SCC 53 at para 29, [2007] 3 SCR 523 [Daley]; R v Huard, 2013 ONCA650 at para 50, 302 CCC (3d) 469). [46] Proper jury instruction requires that the trial judge, “except in rare cases where it would be needless to do so, review thesubstantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value of that evidence, andhow it is to be applied to the facts as they find them” (R v Azoulay, (SCC), [1952] 2 SCR 495 at 497-498; Knox at para 24).This does not mean the trial judge must review for the jury all of the facts upon which the defence relies (Daley at para 55); trial judgesenjoy considerable latitude to determine how much or how little of the evidence needs to be reviewed (R v Royz, 2009 SCC 13 at para 3,

[2009] 1 SCR 423). Non-direction on a matter of evidence constitutes a reversible error only where the single item of evidence in questionis the foundation of the defence (Daley at para 55; Knox at paras 24-25).

So long as the evidence is put to the jury in a manner that allowsit to fully appreciate the issues and the defence presented, the charge will be adequate (Daley at para 57). [47] Where a trial judge makes an error in the jury charge, the question for the appeal court to consider is whether, in the context ofthe whole charge, there is a reasonable possibility that the erroneous instruction may have misled the jury (R v Brydon, (SCC), [1995] 4 SCR 253 at para 25; R v Goforth, 2021 SKCA 20 at paras 82 and 212 [Goforth]). 1.

The alleged errors in the instructions pertaining to evidence relevant to the mens rea element ofmurder [48] As concerns the instructions on the mens rea element of murder, Mr. Wolfe complains that the trial judge failed to relate threekey pieces of evidence to the jury: (

a) Ms. Pangman’s testimony that, when she, Mr. Wolfe and Ms. Hotomani left the house, the fire was quite small, and she didnot think it would last; (

b) Ms. Pangman’s testimony that, when she and Mr. Wolfe returned to the house at approximately 2:30 a.m., nobody attemptedto restart the fire; and (

c) Ms. Pangman’s testimony that, after the fire had been set, Mr. Sugar left the bathroom and no further efforts were made torestrain him. [49] Mr. Wolfe says this evidence tended to raise a doubt about whether he intended to kill Mr. Sugar or even to cause him bodilyharm that was likely to cause death, because it supported an inference that he would have viewed the fire as unlikely to amount to anythingof significance and that Mr. Sugar was capable of getting himself to safety.

He contends that the trial judge did not relate this evidence tothe jury in a way that highlighted its significance or permitted the jury to understand it in context. [50] I would not give effect to this argument for several reasons. [51] First, Mr. Wolfe is incorrect to say that the trial judge did not relate these pieces of evidence to the jury in her final instructions. [52] At an early stage in the charge, before the trial judge began a specific discussion of the elements of the offence the Crown wasrequired to prove against each of the accused, she reviewed the evidence in some detail.

Part of that review included a

summary of Ms.Pangman’s testimony, in which the trial judge specifically mentioned what Ms. Pangman had said about the fire on the pillow being smalland not thinking that it would last. She also pointed out that Ms. Pangman had testified to seeing Mr. Sugar leave the bathroom, push thetelevision away and run into the southeast bedroom of the house before she left, had testified that she thought Mr. Sugar would leave thehouse after they did, and had said that she did not think the fire would stay lit. The trial judge also thoroughly reviewed Ms. Pangman’stestimony regarding what occurred when she and Mr.

Wolfe returned to the house later in the evening, including that she had observed nofire burning at that time and that she thought Mr. Sugar had left and gone to the hospital. [53] Later in her instructions, the trial judge reviewed the Crown and defence theories of the case. She advised the jury that theCrown’s theory was that Mr. Wolfe had actively participated in lighting the fire with the intention to kill Mr. Sugar. In describing Mr.Wolfe’s theory, the trial judge made it clear that his position was that he did not have the intent to murder Mr. Sugar and referredspecifically to Ms.

Pangman’s evidence that Mr. Sugar was “alive, alert and physically mobile in the southeast bedroom” moments beforeMr. Wolfe left the house. [54] The trial judge then proceeded to work through each of the elements that the Crown was required to prove, in sequence. Ateach stage, she reviewed some of the evidence relevant to the consideration of the element under discussion. When discussing the elementof intent and addressing the question of whether Mr. Wolfe had the intent necessary for murder, she again reminded the jury that Mr.Wolfe’s position was “that he had no motive to kill Ryan Sugar” and that Ms.

Pangman had testified that Mr. Wolfe had told her, twice,that his dispute with Mr. Sugar had been “settled” by the physical confrontation in the bathroom. The trial judge also reviewed otheraspects of the testimony of Ms. Pangman and Mr. Kane when discussing this element. In particular, she said: The fire on the pillow was small according to Ms. Pangman, and she did not think the fire would last because the television was pushedover it. Ms. Pangman said that she and Ms. Hotomani left shortly thereafter, with Gregory Wolfe close behind.

Both Gregory Wolfe and Colinda Hotomani spoke to others that night about what happened. Later that evening, Gregory Wolfe andJessica Pangman returned to the house. It was smoky inside, but Ms. Pangman said she did not see a fire. Mr. Wolfe asked Mr. Kane for aflashlight, but Mr. Kane did not have one. Ms. Pangman said she believed Ryan Sugar was no longer in the house. She and Christopher Kane discussed her belief in Mr. Wolfe'spresence, and Mr. Kane drove away from the house. (Emphasis added) [55] In my view, Mr.

Wolfe’s complaints about the trial judge’s failure to mention the three specific portions of the evidence that heidentifies are simply not borne out by the record. Perhaps the trial judge did not describe that evidence in the precise terms that he wouldhave wished but, as I read the charge, the gist of that evidence was conveyed to the jury in an appropriate way at relevant points, includingin her discussion about the mens rea element of the offence. [56] Second, it is important to bear in mind that a jury charge must be read as a whole when considering whether it properlyequipped the jury to decide the case.

In that respect, the trial judge began her final instructions by discussing several general matters andprinciples of law that the jury needed to observe when conducting its deliberation. In that portion of the charge, the trial judge instructed

the jury that it must consider the evidence as a whole and not piecemeal, and that it had a duty to consider all of the evidence, not just the parts that she or counsel referred to. The instruction to consider all of the evidence was repeated several times throughout the charge, including when the trial judge was discussing the element of intent.

In that respect, she said: To determine whether the Crown has proved that Gregory Wolfe had one of the two intents required for murder, you must consider all the evidence including the nature of the harm Gregory Wolfe inflicted and anything said or done in those circumstances. You may wonder how it is that you can decide what somebody intended. Intention is a state of mind, and we cannot physically see inside other people's minds to ask whether they intend to do something.

Thus , you will have to use your common sense and infer from all the evidence you have heard, including anything Gregory Wolfe said or did, whether Mr.

Wolfe intend to cause Ryan Sugar's death or intended to cause Ryan Sugar bodily harm that he knew was likely to cause his death and was reckless whether he died. … In this case, you must decide whether the evidence of intoxication, along with all of the other evidence leaves you with a reasonable doubt whether Gregory Wolfe had the intent required for murder at the time of the arson. (Emphasis added) [ 57 ] In my view, when the charge is read as a whole, there is no possibility that the jury was unclear about the requirement to consider all of the evidence in deciding the case against Mr.

Wolfe, and not simply the portions to which the trial judge had made reference. [ 58 ] Finally, this aspect of Mr. Wolfe’s argument ignores the fact that, although a trial judge has an obligation to relate evidence that is relevant to the issues the jury must determine, it is not the trial judge’s job to make the case for an accused person. Nor is a trial judge required to organize the instructions in such a way that the inferences an accused person wishes to be drawn from the evidence are spoon- fed to the jury.

As the Supreme Court observed in Daley : [28] When reviewing the adequacy of jury instructions, appellate courts must remember the role of the various actors in the context of the trial as a whole … The jury is the master of the facts. The judge is the master of the law. It is counsel’s obligation to put all evidence relevant to its position before the jury and to effectively defend the interests of the accused, in the case of defence counsel, and the interests of the state, in the case of Crown counsel. The trial procedure is accusatory and adversarial.

The judge is not there to argue, inquire or examine, accuse or defend, nor to make decisions on the facts or on the guilt of the accused… [ 59 ] In sum, I see no error in the way the trial judge related the evidence to the jury in connection with the question of whether the Crown had proven the mens rea element of murder against Mr. Wolfe. 2. The alleged error in the instructions pertaining to evidence relevant to the issue of unlawful confinement [ 60 ] The Crown’s position at trial was that Mr. Wolfe was guilty of first degree murder under s. 231(5) (

e) of the Criminal Code , i.e., because he murdered Mr. Sugar while “committing or attempting to commit” the offence of unlawful confinement. Section 231(5) provides that murder will be elevated to first degree murder if it occurs in connection with any one of the predicate offences listed in subparagraphs (

a) to (f). Unlawful confinement is one such offence. [ 61 ] Mr. Wolfe’s primary argument at trial was that he should only be convicted of manslaughter because he did not intend to kill or cause any serious bodily harm to Mr. Sugar. However, he also argued that the evidence established that Mr. Sugar had left the bathroom and was no longer confined following the physical confrontation that took place between the two of them. In that respect, Mr. Wolfe’s trial counsel said this to the jury: At the end of the incident, [Ms. Pangman] saw Ryan jump from the bathroom door into the bedroom. He was standing there.

He was standing in the room trying to get help. Given that he had of his own volition, of his own action, left the bathroom and had gone into another room, clearly, I would suggest, he was no longer confined, if you find there was a confinement in the bathroom. He was active and still standing and asking for help as Jessica left. Neither Mr. Wolfe nor anybody else tried to confine him to the bedroom, nor did they take any further steps to assault him. As mentioned, the -- the Judge will tell you about the law when it comes to unlawful confinement. [ 62 ] In essence, it was Mr.

Wolfe’s position that the confinement of Mr. Sugar had ended at a time when he was still mobile and able to leave the house and, as such, if he was guilty of murder, it was not first degree murder. [ 63 ] Mr. Wolfe’s first line of argument under this heading is that the trial judge, when instructing the jury on the elements of unlawful confinement, failed to adequately relate three key pieces of evidence that supported his defence. These were: (

i) the pathologist’s testimony that the injuries Mr. Sugar had suffered as a result of being assaulted had not impaired his ability to move; (ii) Ms. Pangman’s testimony that Mr. Sugar had been moving about after leaving the bathroom; and (iii) the evidence that the windows in the southeast bedroom were capable of being opened. Mr. Wolfe contends that, without direct mention and further explanation of the significance of this evidence, the jury would not have understood that, if Mr. Sugar was able to escape, he could not be said to have been unlawfully confined when he died. [ 64 ] Mr.

Wolfe’s second line of argument is that the trial judge failed to properly instruct the jury as to what could constitute an “intervening act” to break the chain of continuity that had to exist between the unlawful act (arson) and unlawful confinement in order to prove that he was guilty of first degree murder under s. 231(5) (e). He contends that Mr. Sugar’s escape from the bathroom was such an intervening act and, therefore, it was necessary for the trial judge to explain that to the jury, along with appropriate references to the evidence. Mr. Wolfe says this evidence included the portions of Ms.

Pangman’s testimony referred to in relation to the issue of mens rea, as well as evidence which indicated that the fire department was not alerted to the fire until 3:30 a.m. and that, when firefighters arrived, the back door to the house was open. All of this, he says, supported an inference that Mr. Sugar could have escaped the house before he

succumbed to smoke inhalation and, as such, the unlawful confinement and murder were not part of the same series of events. [65] As I will explain, these arguments must also fail. [66] Section 231(5)(

e) of the Criminal Code provides that murder is first degree murder when “death is caused” by the accused“while committing or attempting to commit” forcible (unlawful) confinement. [67] In R v Harbottle, (SCC), [1993] 3 SCR 306 [Harbottle], Cory J., writing for the Court, emphasized that what isnow s. 231(5) is “in essence a sentencing provision” because first degree murder “is an aggravated form of murder and not a distinctsubstantive offence” (at 323). It is only to be considered after the jury has concluded that the accused is guilty of murder, at which pointthe jury must then consider whether one of the aggravating circumstances listed in subparagraphs (

a) to (

f) exists.

Justice Cory went on, at325, to describe the five elements that the Crown must prove in order for an accused person to be found guilty of first degree murder underwhat is now s. 231(5)(e): (1) the accused was guilty of the underlying crime of [unlawful confinement] or of attempting to commit that crime; (2) the accused was guilty of the murder of the victim; (3) the accused participated in the murder in such a manner that he was a substantial cause of the death of the victim; (4) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of thevictim; and (5) the crimes of [unlawful confinement] and murder were part of the same transaction; that is to say, the death was caused whilecommitting the offence of [unlawful confinement] as part of the same series of events. [68] What this means is that the murder must be closely connected temporally and causally with the unlawful confinement (orattempted unlawful confinement), in circumstances that make the entire course of conduct a single transaction (R v Pritchard, 2008 SCC59, [2008] 3 SCR 195 [Pritchard]).

The temporal-causal connection necessary for s. 231(5)(

e) to operate will be established where theunlawful confinement creates a “continuing illegal domination of the victim” that provides the accused with a position of power that he orshe chooses to exploit to murder the victim (Pritchard at para 35). [69] In order for murder to be elevated to first degree murder on this basis, the murder and the unlawful confinement must alsoconstitute distinct criminal acts; s. 231(5)(

e) is not triggered if the unlawful confinement is entirely consumed in the very act of killing(Pritchard at para 27; R v Woods, 2019 SKCA 84 at paras 133-134, 379 CCC (3d) 356; R v Kimberley, (2001), (ONCA), 56 OR (3d) 18 (Ont CA) at para 108 [Kimberley]). [70] Unlawful confinement is established if, for any significant period of time, the victim is coercively restrained or directedcontrary to his or her wishes, so that he or she cannot move about according to his or her own inclination and desire (Pritchard at para 24).This does not require proof of total physical restraint (R v Gratton (1985), 18 CCC (3d) 462 at 473 (Ont CA); leave to appeal to SCCrefused, [1985] 1 SCR viii) or proof that the victim had no possible means of escape (see R v Magoon, 2018 SCC 14 at para 64, [2018] 1SCR 309).

Unlawful confinement is a continuing offence, but one that is complete when the victim is restrained against his or her will. Forthe purpose of invoking s. 231(5)(e), “it is immaterial that the unlawful confinement of the victim has not been completed. The provisionis invoked where an accused attempts to unlawfully confine the victim or another person” (R v Parris, 2013 ONCA 515 at para 47, 300CCC (3d) 41 [Parris]). [71] Mr. Wolfe’s arguments on this issue fail primarily because they are based on an erroneous

interpretation of the law. [72] As for his first line of argument, the cases Mr. Wolfe cites as authority for the proposition that s. 231(5)(

e) does not operatewhere there is evidence that the confinement may have ended before the victim was killed (R v Sundman, 2018 BCSC 602; R v Downey,2019 NSSC 113; and R v Cooney, 1987 CarswellOnt 2034 (WL) (CA)), do not apply in the circumstances of this case. They were all caseswhere the unlawful confinement had clearly ended before the unlawful act was committed.

That is not the case here. [73] In the context of constructive first degree murder under s. 231(5)(e), the critical determination to be made is whether thecommission of the unlawful act that causes death is closely connected, causally and temporally, with the actual or attempted unlawfulconfinement of the victim. In the circumstances of this case, it was not necessary for the Crown to prove that Mr. Sugar’s movementswere completely restrained at all times to prove that he was unlawfully confined. Nor did the Crown have to prove that Mr. Sugar had nomeans of escaping from the house before he died.

The governing authorities demonstrate that, while there does not need to be exactcoincidence in the timing of the murderous act and the unlawful confinement for s. 231(5)(

e) to operate (Pritchard at para 33), theprovision is clearly invoked if, at the point that the unlawful act which causes death is committed, the accused is also unlawfullyconfining the victim, or attempting to do so (Parris at para 47). Applying these authorities to the circumstances at hand, all of the evidenceindicated that the unlawful act that caused Mr. Sugar’s death (i.e., the setting of the fire) was committed while he was barricaded in thebathroom.

The fact that he may have been able to leave the bathroom and move about the house before he succumbed to smoke inhalationand died was irrelevant to the operation of s. 231(5)(e). As such, the trial judge’s failure to draw specific attention to that evidence in thecontext of her instruction on the element of unlawful confinement was not an error. [74] Mr. Wolfe’s second line of argument also proceeds from a faulty legal footing. That is to say, from a misinterpretation of thelegal significance of an “intervening act” in the analysis required under s. 231(5)(e).

As I read the decision in Harbottle, when the Courtspoke of an “intervening act” that negates the operation of that subsection, it was not referring to something that broke the continuity ofthe unlawful confinement, but rather something that meant the actions of the accused could no longer be said to be substantially connectedto the death of the deceased. In that respect, Cory J. said, at 324: In my view, an accused may only be convicted under the subsection if the Crown establishes that the accused has committed

an act orseries of acts which are of such a nature that they must be regarded as a substantial and integral cause of the death.

… The substantial causation test requires that the accused play a very active role -- usually a physical role -- in the killing. Under s. 214(5),the actions of the accused must form an essential, substantial and integral part of the killing of the victim. Obviously, this requirement ismuch higher than that described in Smithers v. The Queen, (SCC), [1978] 1 S.C.R. 506, which dealt with the offence ofmanslaughter. There it was held at p. 519 that sufficient causation existed where the actions of the accused were "a contributing cause ofdeath, outside the de minimis range".

That case demonstrates the distinctions in the degree of causation required for the differenthomicide offences. The majority of the Court of Appeal below expressed the view that the acts of the accused must physically result in death. In most cases,to cause physically the death of the victim will undoubtedly be required to obtain a conviction under s. 214(5).

However, while theintervening act of another will often mean that the accused is no longer the substantial cause of the death under s. 214(5), there will beinstances where an accused could well be the substantial cause of the death without physically causing it ... [75] In this case, the operative unlawful act, on Mr. Wolfe’s part, was the setting of the fire that ultimately caused Mr. Sugar to diefrom smoke inhalation and carbon monoxide poisoning. Based on the evidence, I struggle to see how the fact that Mr.

Sugar wasphysically mobile or that the fire initially produced only smoke but not flames could possibly be seen as constituting the “intervening actof another” such that the setting of the fire was no longer a substantial cause of his death. Accordingly, I find no error in the fact that thetrial judge did not make specific reference to that evidence when discussing this element. [76] In the result, this argument must fail. C. Did the trial judge fail to accurately explain Mr. Wolfe’s theory of the caseto the jury? [77] Mr.

Wolfe contends that the trial judge, in her final instructions to the jury, misstated his theory of the case. In that regard, herefers to a portion in the midst of the trial judge’s discussion of the elements of murder where, while reviewing some of the evidencepertinent to her instructions, she said the following: Mr. Wolfe then pushed the television back into the hallway. The fire on the pillow was small according to Ms. Pangman, and she did notthink the fire would last because the television was pushed over it. Ms. Pangman said that she and Ms. Hotomani left shortly thereafter,with Gregory Wolfe close behind.

Both Gregory Wolfe and Colinda Hotomani spoke to others that night about what happened. Later that evening, Gregory Wolfe andJessica Pangman returned to the house. It was smoky inside, but Ms. Pangman said she did not see a fire. Mr. Wolfe asked Mr. Kane for aflashlight, but Mr. Kane did not have one. Ms. Pangman said she believed Ryan Sugar was no longer in the house. She and Christopher Kane discussed her belief in Mr. Wolfe'spresence, and Mr. Kane drove away from the house. He said he was confident that Ryan Sugar had left the house.

Gregory Wolfe assertsthat Ryan Sugar died by smoke inhalation because he, Ryan Sugar, was too drunk or too high to know he had to leave the house. If you are not satisfied beyond a reasonable doubt that Gregory Wolfe had one of the two intents required for murder, you must findGregory Wolfe not guilty of murder, but guilty of the included offence of manslaughter. If you are satisfied beyond a reasonable doubt that Gregory Wolfe had one of the two intents required for murder, you must go on to thenext question. (Emphasis added) [78] Mr.

Wolfe asserts that this characterization was directly contrary to his position, which was that he had nothing to do with thefire and, furthermore, that Mr. Sugar’s injuries were neither life-threatening nor of such a nature as to impede his movements. He says thetrial judge’s mischaracterization of his position was prejudicial to him because it misled the jury into thinking that he was admitting abasic premise of the Crown’s argument, namely that Mr. Sugar was too incapacitated to not be confined. [79] I do not accept this argument. First, it must be considered in its proper context.

At the point where the trial judge made theimpugned remarks, she was discussing the issue of intent in relation to the charge of murder. Her comments were not a misdirection inrelation to that element. [80] Nor were the trial judge’s remarks at this stage necessarily inconsistent with how Mr. Wolfe had argued the case. In his closingsubmissions to the jury, Mr. Wolfe’s counsel drew attention to the evidence that the injuries Mr. Sugar had suffered in the altercation withMr. Wolfe were neither life-threatening nor sufficient to have impeded his ability to move about.

He also pointed out that nobodyattempted to further assault Mr. Sugar or to confine him in the bedroom once he had left the bathroom. By doing so, he was clearlyimplying that there must have been some other reason - for example, intoxication - that Mr. Sugar had been unable to leave the house. [81] Second, it is important to bear in mind that the jury charge must be read as a whole. Mr. Wolfe focuses on a discrete portion ofthe trial judge’s instructions, but that portion is not a complete account of her description of his theory. In fact, earlier in the charge, thetrial judge had set out Mr.

Wolfe’s theory of the case for the jury as follows: Gregory Wolfe asserts that the Crown has not presented independent evidence of his involvement in the unlawful death of Ryan Sugar. Heargues that the Crown's evidence of his involvement comes only from the testimony of a co-accused and from a jailhouse informant. Heasserts that you should be very cautious about accepting the evidence of witnesses who have reasons to fabricate or exaggerate theirevidence. Mr. Wolfe argues that even if you accept that an altercation occurred between him and Ryan Sugar, that altercation was not a contributing

factor to his death. Mr. Wolfe argues that a sudden continuous sequence of events was set in motion when Ms. Hotomani woke him up and alleged that Mr. Sugar had sexually assaulted both her and Ms. Pangman. Jessica Pangman testified that she saw Ryan Sugar alive, alert, and physically mobile in the southeast bedroom of the house a few minutes before she, Ms. Hotomani, and Mr. Wolfe left the house. Mr. Wolfe argues that the Crown has not proven beyond a reasonable doubt that Mr. Sugar was unlawfully confined. Mr. Wolfe argues that he was the only of those three who did not have a relationship with Mr.

Sugar, and that there is no evidence he had a motive to kill the deceased. Further, Mr. Wolfe claims that the evidence establishes he was intoxicated and unable to form the intent to murder. If you find that he formed an intent to murder, it was because he was provoked by the actions of Ryan Sugar. Mr. Wolfe acknowledges that he was involved in the events of October 4 and 5, 2016, but he argues that the evidence only points to actions leading to manslaughter.

He asserts that he did not have the intent to murder Ryan Sugar. [ 82 ] As can be seen from this, the trial judge provided a complete and detailed account of Mr. Wolfe’s theory of the case. When the portion of the charge objected to by Mr. Wolfe is read in the context of the charge as a whole, and in the context of the trial as a whole, I see no basis upon which to conclude that there is a possibility that the jury misunderstood Mr. Wolfe’s position. This argument must be rejected. D. Was the representation that Mr. Wolfe received from trial counsel ineffective? [ 83 ] Mr.

Wolfe’s final ground of appeal alleges that he received ineffective representation from his lawyer at trial. He takes issue with the fact that his trial counsel, in closing argument, conceded that he had played a role in the events that led to Mr. Sugar’s death and that, as a result, a conviction for manslaughter would be appropriate. [ 84 ] Mr. Wolfe takes the position that such a concession was improper because, in light of the Crown’s theory of the case, it amounted to an admission that he had participated in setting the fatal fire. Mr.

Wolfe asserts that trial counsel did not inform him of the full legal implications of making such a concession and that he would not have agreed with this strategy if he had been properly informed. He applies to adduce an affidavit, sworn on July 16, 2020, as fresh evidence to support these assertions. If Mr. Wolfe’s affidavit is admitted as fresh evidence, Mr. Wolfe’s trial counsel also seeks to file an affidavit to respond to some of those allegations. [ 85 ] Before examining this aspect of Mr.

Wolfe’s submissions, it is useful to briefly review the legal principles that apply to appellate consideration of applications to introduce fresh evidence and claims of ineffective assistance of counsel. [ 86 ] An accused who is represented by counsel at trial is entitled to receive effective legal representation. An appellant may appeal from conviction on the ground of incompetent legal counsel but, in order to succeed with this sort of argument, must establish two things: (

i) that his or her trial lawyer was incompetent; and (ii) that the incompetence caused a miscarriage of justice ( R v Dreaver , 2014 SKCA 133 at para 29 , 446 Sask R 313 [ Dreaver ]; Belcourt at para 48 ; Regnier at para 4 ). [ 87 ] In R v B.(G.D.), 2000 SCC 22 , [2000] 1 SCR 520 [ B.(G.D.) ], Major J. summarized the approach that appellate courts should take in examining claims of ineffective representation: [26] The approach to an ineffectiveness claim is explained in Strickland v. Washington , 466 U.S. 668 (1984), per O’Connor J. The reasons contain a performance component and a prejudice component.

For an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. [27] Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.

The wisdom of hindsight has no place in this assessment. [28] Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised. [29] In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct.

The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow ( Strickland , supra , at p. 697). … [34] Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look behind it save only to prevent a miscarriage of justice.

While it is not the case that defence lawyers must always obtain express approval for each and every decision made by them in relation to the conduct of the defence, there are decisions such as whether or not to plead guilty, or whether or not to testify that defence counsel are ethically bound to discuss with the client and regarding which they must obtain instructions.

The failure to do so may in some circumstances raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice. [ 88 ] As B.(G.D.) instructs, there are two components to a claim of ineffective counsel: prejudice and performance. Appellate courts are directed to focus initially on the prejudice component.

If it is apparent from the record that no prejudice was suffered due to the alleged incompetence (i.e., there was no miscarriage of justice), then the claim should be disposed of on that basis and the performance part of the claim need not be considered ( Dreaver at para 29 ; Belcourt at para 49 ; R v Aisaican , 2019 SKCA 58 at para 22 , 377 CCC (3d) 114

[Aisaican]; R v Graham, 2019 SKCA 63 at para 27, [2019] 12 WWR 207 [Graham]). [89] Where an appellant seeks to lead fresh evidence in support of a claim of ineffective trial counsel, the question of whether thatevidence should be admitted is not determined by applying the familiar test set out in R v Palmer, (SCC), [1980] 1 SCR759, as the due diligence criterion of that test does not apply in these circumstances. Instead, fresh evidence may be admitted if it is (a)relevant to an issue before the appellate court; (

b) credible; and (

c) sufficient, if uncontradicted, to warrant the making of the order sought;i.e., it could reasonably be expected to have affected the result (Dreaver at para 33; Graham at para 31; Aisaican at para 16; R v Bear,2020 SKCA 86 at para 20, 389 CCC (3d) 437; R v S.G.T., 2011 SKCA 4 at paras 39–40, 366 Sask R 90). [90] In light of these principles, the determination of whether Mr. Wolfe suffered a miscarriage of justice due to the ineffectiverepresentation of trial counsel requires considering the following questions: (

i) should the proposed fresh evidence be admitted; (ii) didMr. Wolfe suffer any prejudice as a result of trial counsel’s allegedly ineffective representation; and (iii) if Mr. Wolfe suffered prejudice,did trial counsel’s performance fail to meet the standard of reasonable professional assistance? 1. Should the proposed fresh evidence be admitted? [91] Mr. Wolfe seeks leave to file an affidavit in support of his ineffective counsel argument. In it, he deposes that he told his trialcounsel he had been present at the house when Mr. Sugar had died and that he had been in a fight with Mr. Sugar.

He says, however, thathe never told trial counsel he had anything to do with the fire. Mr. Wolfe also deposes that, as the end of the trial neared, counsel read tohim a draft of his closing argument, including the fact that counsel planned to invite the jury to find Mr. Wolfe not guilty of murder, butguilty of manslaughter. Mr.

Wolfe acknowledges that he was “willing to ask for a manslaughter conviction in order to have the greatestpossibility of avoiding a wrongful conviction for murder”, but says that he would not have instructed counsel to make any concession thatamounted to an admission that he was involved in setting the fire. He deposes that he did not understand that “conceding to manslaughterwould mean admitting that I had something to do with the fire”. [92] In effect, Mr.

Wolfe asserts that, even though he agreed with the approach taken by trial counsel, he did so only because he hadnot been fully informed of the consequences that could result. In that respect, Mr. Wolfe draws the analogy to an uniformed guilty plea,saying that his endorsement of trial counsel’s approach was the product of being unaware of “collateral consequences” (see R v Wong,2018 SCC 25, [2018] 1 SCR 696) and should render his acquiescence to such an approach meaningless, in the same way that beinguninformed renders a guilty plea invalid. Mr.

Wolfe contends that the course of action taken by trial counsel on the strength of hisuninformed decision to concede that he was guilty of manslaughter resulted in a miscarriage of justice. Although I find the collateralconsequences analogy doubtful, that argument can be left for another day, as this ground of Mr. Wolfe’s appeal can be resolved on anotherbasis. [93] In my view, Mr. Wolfe’s application to introduce fresh evidence must fail.

Because the disposition of the fresh evidenceapplication is closely intertwined the with the ineffective counsel argument, I will develop my reasons more fully in that portion of theanalysis. Proceeding straight to the bottom line, however, the proposed fresh evidence does not meet the test for admission because is notsufficient to warrant the relief that Mr. Wolfe seeks. More to the point, nothing that Mr.

Wolfe says in his affidavit could reasonably beexpected to have affected the result, as it does not establish that he suffered any prejudice as a result of the performance of his trialcounsel. [94] In light of that, it is unnecessary to consider whether the affidavit filed by Mr. Wolfe’s trial counsel should also be admitted asfresh evidence. 2. Did Mr.

Wolfe suffer any prejudice as a result of trial counsel’s allegedly ineffectiverepresentation? [95] As set out above, the governing jurisprudence instructs that, when examining an argument that trial counsel was ineffective, anappellate court should focus first on whether the appellant suffered any prejudice as a result of counsel’s allegedly incompetentperformance. [96] The prejudice component of an ineffective counsel claim will be made out where the appellant establishes either: (

i) that theincompetence of counsel caused an adjudicative unfairness; or (ii) that, if counsel had performed competently, there is a reasonableprobability the verdict would have been different (B.(G.D.) at para 25; Belcourt at para 51; Regnier at para 4). In the context of the latter,a “reasonable probability” is one that is sufficient to undermine confidence in the outcome of the trial and lies “somewhere between a merepossibility and a likelihood” (R v Joanisse (1995), (ON CA), 102 CCC (3d) 35 at para 62 (Ont CA), leave to appeal toSCC refused, [1997] 1 SCR viii; R v Atzenberger, 2018 BCCA 296 at para 66).

The question of whether the actions of counsel can be seenas having compromised the fairness of the trial process or the reliability of the verdict must be considered in light of the full trial recordand must take into account the strength of the Crown’s case. If the evidence in support of a conviction is overwhelming, it will be moredifficult for an appellant to establish that counsel’s performance, regardless of its adequacy, had a prejudicial impact (see, for example: Rv Davies, 2008 ONCA 209 at para 38, 234 OAC 291; R v Khaja, 2010 ONCA 246 at para 13; and R v Eid, 2020 ONCA 649 at para 10). [97] Mr.

Wolfe argues that, in light of the Crown’s closing argument and the trial judge’s instructions, his trial counsel’s decision toinvite the jury to find him not guilty of first degree murder but guilty of manslaughter effectively amounted to a formal admission that hehad set the fire that killed Mr. Sugar. He contends that this resulted in prejudice because it dispensed with a “live issue of greatimportance” to the question of whether he had the mens rea for murder.

By this, he means that the jury could readily draw the inferencethat he had the intent necessary for murder from his admission to participating in the underlying unlawful act. This inference regarding hisintent would not have been so easily drawn, says Mr. Wolfe, if the jury had found him to have participated only in a different unlawful act,namely assaulting Mr. Sugar. [98] This argument simply cannot succeed. First, although Mr. Wolfe’s trial counsel conceded that Mr. Wolfe should be foundguilty of manslaughter, he did not concede that Mr. Wolfe had been personally involved in setting the fire or that Mr.

Wolfe intended tokill, or even cause any serious harm to, Mr. Sugar. In fact, counsel specifically argued that the jury should come to a different conclusion

about Mr. Wolfe’s intention. He pointed out that Mr. Wolfe had “settled his differences” with Mr. Sugar before the fire was started andthat he had much less reason to want to cause Mr. Sugar harm than did Ms. Hotomani and Ms. Pangman. Counsel also submitted thatMr. Wolfe was unlikely to have known where to find flammable material such as oven cleaner, given that he had only been at the houseonce or twice before, and he forcefully argued why the jury should disbelieve the testimony given by Ms. Pangman and Mr. Kane. Inshort, counsel’s closing submissions made it clear that Mr.

Wolfe disputed any suggestion that he had set the fire. [99] Second, it is legally incorrect to say that a concession to being found guilty of manslaughter necessarily implied that Mr. Wolfehad been directly involved in setting the fire. Given the manner in which the case was presented, Mr. Wolfe could be found culpable in theunlawful killing of Mr. Sugar either if he had been directly involved in setting the fire personally, or if his actions aided or abetted otherpersons, namely Ms. Hotomani or Ms. Pangman, in doing so. In that respect, the evidence that Mr.

Wolfe had been involved in the eventsthat contributed to the setting of the fire, in at least one of those ways, was overwhelming and uncontradicted. Moreover, the concessionmade in closing argument was in no way an admission that Mr. Wolfe had the mens rea necessary for murder. On the basis of the trialrecord, it is difficult to see how trial counsel’s concession that Mr. Wolfe should be found guilty of manslaughter because he had been“involved in what happened that night” can be seen to have prejudiced the fairness of the trial or the validity of the verdict. [100] In the end, Mr.

Wolfe has not persuaded me that there is a reasonable probability the verdict would have been different if trialcounsel had taken a different approach in his closing submissions. The case against Mr. Wolfe was overwhelming. The evidencesupporting the conclusion that he had been involved in a legally culpable way with the unlawful act that caused Mr. Sugar’s death wasuncontradicted.

When the full record is examined, I am not persuaded that either the reliability of the verdict or the fairness of the trial arecalled into question just because the strategy counsel chose to employ was not successful, nor could the proposed fresh evidencereasonably have any impact on this conclusion. [101] Accordingly, having found that Mr. Wolfe did not suffer any prejudice as a result of the representation provided by his trialcounsel, it is not necessary to consider whether trial counsel’s performance failed to meet the standard of reasonable professionalassistance. This ground of appeal cannot succeed. E.

Conclusion [102] For the foregoing reasons, Mr. Wolfe’s appeal must be dismissed. IV. THE APPEAL OF COLINDA HOTOMANI [103] Ms. Hotomani raises three grounds of appeal. [104] First, she argues that the verdict of second degree murder rendered against her was unreasonable. Second, she contends that thetrial judge failed to properly instruct the jury on the partial defence of provocation. Third, she submits that the trial judge erred by failingto provide a Vetrovec caution in relation to the testimony of Joseph Oakes. [105] As I will explain, I am not persuaded that any of these grounds of appeal can succeed. A.

Was the verdict unreasonable? [106] Ms. Hotomani’s first line of argument under this ground of appeal is that the verdict returned against her was unreasonablebecause the evidence that her actions had been a significant contributing cause to Mr. Sugar’s death was largely circumstantial and did notrule out an alternative reasonable inference inconsistent with her guilt. This alternative inference, says Ms. Hotomani, is that the fire thatcaused Mr. Sugar’s death was not the one she may have participated in starting, but rather a second fire started by Mr. Wolfe, alone, afterthe first fire had gone out and after Ms.

Hotomani and Ms. Pangman had left the house. [107] Under s. 686(1)(a)(

i) of the Criminal Code, a court of appeal may set aside a guilty verdict where the verdict is unreasonable orunsupported by the evidence. The test here is stringent; a verdict is unreasonable if it is one that no properly instructed jury, actingjudicially, could reasonably have rendered.

An allegation of unreasonable verdict does not invite the court of appeal to re-try the case but,rather, requires it to assess the evidence to determine whether, considered as a whole, it is reasonably capable of supporting the verdictrendered (R v Biniaris, 2000 SCC 15 at para 36, [2000] 1 SCR 381; R v Burns, (SCC), [1994] 1 SCR 656 at 663). [108] When the Crown’s case depends substantially or wholly on circumstantial evidence the criminal standard of proof requires thetrier of fact to be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from theevidence as a whole (R. v.

Villaroman, 2016 SCC 33 at para 20, [2016] 1 SCR 1000 [Villaroman]).

When a verdict based oncircumstantial evidence is challenged as being unreasonable, the question for an appellate court is whether the trier of fact, actingjudicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken asa whole (Villaroman at para 55; R v Groshok, 2019 SKCA 39 at para 40). [109] A guilty verdict returned by a jury in a circumstantial evidence case is not rendered unreasonable merely because the evidence iscapable of giving rise to competing inferences (R v Learning, 2019 SKCA 5 at para 26 [Learning]).

A trier of fact must consider otherplausible theories and reasonable possibilities that arise from the evidence or lack of evidence but, while the Crown is required to negateother reasonable possibilities in a circumstantial evidence case, it need not negate “fevered imaginings or speculation” or “every possibleconjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence” (R v Lights, 2020 ONCA 128 atpara 38, 149 OR (3d) 273, Villaroman, at paras 37–38).

Circumstantial evidence does not have to completely exclude all other conceivableinferences in order to support a conviction. A verdict is not unreasonable simply because there are alternatives that do not raise a doubt inthe jury’s mind. It is fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonableenough to raise a doubt (Villaroman at para 56).

[ 110 ] It is also important to note that the requirement for proof beyond a reasonable doubt does not apply to each individual piece of circumstantial evidence. In order for a trier of fact to convict on the basis of circumstantial evidence, it is not necessary that each item of evidence, taken individually, support only an inference of guilt.

It is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt ( R v J.M.H. , 2011 SCC 45 at para 31 , [2011] 3 SCR 197 ; R v Ballantyne , 2015 SKCA 107 at para 42 , 329 CCC (3d) 127 ; R v Alves , 2014 SKCA 82 at para 43 , [2014] 12 WWR 63 ). [ 111 ] In the end, it is not the function of an appellate court to determine whether it would have reached the same conclusion as the jury about the circumstantial evidence, but rather whether it was unreasonable for the jury to have concluded that the evidence, as a whole, excluded all reasonable alternatives to guilt ( Learning at para 23 ). [ 112 ] This line of Ms.

Hotomani’s argument suffers from a critical flaw. Namely, contrary to what she asserts, the evidence regarding her culpability for setting the fatal fire was not circumstantial. It was direct. [ 113 ] The relevant unlawful act in this case was a deliberately set fire that caused Mr. Sugar to die from smoke inhalation and carbon monoxide poisoning. There was no dispute about these things at trial; the evidence in that respect was uncontroverted. Ms.

Hotomani’s argument that the circumstantial evidence does not preclude a “second fire” scenario is premised on the erroneous notion that the Crown was required to prove that she personally set the fire that killed Mr. Sugar. It fails to appreciate that the Crown did not need to prove that there was only one fire, or even that the fatal fire was started before Ms. Hotomani left the house, in order for her to be culpable for Mr. Sugar’s death. The Crown was only required to prove that she was a party to the setting of the fatal fire.

That requirement could be met either by proof that she had lit the fire herself, or by proof that she had aided or abetted another person in doing so. There was ample direct evidence of Ms. Hotomani’s involvement in that respect. [ 114 ] For example, Ms. Pangman testified that, after Mr. Wolfe had assaulted Mr. Sugar, she observed Mr. Wolfe using oven cleaner and a lighter to try to set the bathroom door on fire. Ms. Pangman said that when Mr. Wolfe complained that this was not working, Ms.

Hotomani went to the kitchen and retrieved a bottle of lice treatment rinse, which was sprayed on a pillow, which was then lit on fire. Ms. Pangman also said that, even though she did not think the pillow fire was going to last long, she observed that, before she and Ms. Hotomani left the house, the pillow was still in flames, the television that had been moved in front of the bathroom door was melting, and there was a lot of smoke. Ms. Pangman also testified that Ms. Hotomani had participated, along with Mr. Wolfe, in the assault of Mr. Sugar by handing him the knife that Mr. Wolfe used to slash Mr.

Sugar’s arms and legs. [ 115 ] Mr. Oakes also testified that Ms. Hotomani told him that she, herself, was the one who had started the fire. [ 116 ] In her warned statement to the police, Ms. Hotomani admitted to encouraging and participating with Mr. Wolfe in the assault on Mr. Sugar. She also admitted to providing Mr. Wolfe with a bottle of “glue or something” from the kitchen, which Mr. Wolfe used to light a fire that “burned pretty quick” and made enough smoke to set off the smoke detector. [ 117 ] None of this evidence was circumstantial. It was all direct evidence of Ms.

Hotomani’s involvement in the events that caused Mr. Sugar’s death. It was evidence that the jury was entitled to accept and from which it could properly and reasonably conclude that, at the very least, Ms. Hotomani had aided or abetted Mr. Wolfe in setting the fatal fire and, as such, that she was a party to the underlying unlawful act. [ 118 ] Moreover, there was no evidence to support the theory that a second fire, completely unrelated to Ms. Hotomani’s actions, had been set by Mr. Wolfe after she left the house. There was some evidence that Mr. Wolfe remained in the house for a short period after Ms.

Hotomani and Ms. Pangman had exited. The fire inspector also agreed in cross-examination that he could not rule out the possibility that the fire had started on the bathroom door and not on an object in the hallway before spreading to the door. But none of this amounted to anything more than conjecture regarding the setting of a second fire completely unrelated to the one that Ms. Hotomani had participated in setting. This is not enough to render the jury’s verdict unreasonable (see, for example: R v Lola, 2020 SKCA 103 at paras 36–38 , 392 CCC (3d) 284).

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