R. v. Roncaioli

R. v. Roncaioli Collection Decisions of the Court of Appeal Date 2011-05-13 Neutral citation 2011 ONCA 378 Docket numbers C48861 Judges Laskin, John Ivan; Armstrong, Robert Patrick; LaForme, Harry Smith Subject Criminal Decision Content CITATION: R. v. Roncaioli, 2011 ONCA 378 DATE: 20110513 DOCKET: C48861 COURT OF APPEAL FOR ONTARIO Laskin, Armstrong and LaForme JJ.A. BETWEEN Her Majesty the Queen Respondent and Joseph Roncaioli Appellant Sharon E. Lavine, for the appellant M. David Lepofsky, for the respondent Heard: November 29 and 30, 2010 On appeal from the conviction entered on February 16, 2008 and the sentence imposed on June 5, 2008, by Justice Jane Ferguson of the Superior Court of Justice, sitting with a jury. Laskin J.A.: A. OVERVIEW (i) Factual Background [1] The appellant, Joseph Roncaioli, was an obstetrician and gynaecologist for over 35 years. He was charged with and convicted of manslaughter in the death of his wife, Ibi Roncaioli, to whom he had been married for over 30 years. He was sentenced to seven years in jail. He appeals both his conviction and sentence. [2] Ibi Roncaioli died in July 2003. The appellant was charged with unlawfully causing her death in January 2004. At the time, he was 67 years old. [3] The trial before a judge and jury began in the fall of 2006, but was discontinued because one of the Crown’s expert witnesses was too ill to testify. The defence was offered but turned down a new trial date in February 2007. Instead, the trial was rescheduled for October 2007, but again could not proceed because the assigned Crown had taken ill. The trial began in January 2008. At the beginning of the trial, the defence brought a motion under s. 11(b) of the Charter to stay the proceedings because of unreasonable delay. The trial judge dismissed the motion. [4] At trial, a forensic pathologist testified that the cause of Ibi Roncaioli’s death was multi-drug toxicity: the aggregate effect of two local anaesthetics – lidocaine and bupivacaine – and alcohol. The two factual issues for the jury were, first, identity: who injected Ibi with the toxic amount of the anaesthetics found in her body? And second, causation: was the combined effect of the two anaesthetics a significant contributing cause of death? [5] On the issue of identity, the appellant testified that on the day of her death, he had injected his wife with the two anaesthetics. He said that he was trying to draw blood to run tests on her because of her declining health and wanted to alleviate any pain she might otherwise suffer. He maintains, however, that he injected her with only therapeutic amounts of the anaesthetics, not the toxic amounts found in her body. He claims that she injected herself with what proved to be the fatal doses. The Crown accepted that it had to prove beyond a reasonable doubt that the appellant injected enough of the two anaesthetics found in Ibi Roncaioli to produce her drug level at the time of her death and that she had not self-injected either drug. [6] On the issue of causation, there was expert evidence that the combined effect of lidocaine and bupivacaine at the levels found in Ibi Roncaioli’s body were likely toxic. There was also evidence that Ibi Roncaioli had consumed alcohol in the hours leading up to her death, and that alcohol exacerbated the effects of the two anaesthetics. The Crown agreed that it had to prove beyond a reasonable doubt that these two anaesthetics in combination were a significant contributing cause of Ibi Roncaioli’s death. [7] In seeking to prove the appellant had unlawfully caused his wife’s death, the Crown put forward two alternative theories of manslaughter: by criminal negligence and by an unlawful act. The criminal negligence route to manslaughter rested on showing that the appellant injected his wife with lidocaine and bupivacaine, and in doing so showed a wanton and reckless disregard for her life or safety. The unlawful act route rested on showing that the appellant intentionally injected Ibi Roncaioli with the two anaesthetics in quantities that endangered her life, thus constituting manslaughter by the unlawful act of aggravated assault. [8] In attempting to prove unlawful act manslaughter, the Crown relied on evidence of motive. Indeed, though not required to prove an intent to kill, the Crown claimed that the appellant wanted his wife dead for two reasons: she had spent virtually all of their retirement savings and their relationship had deteriorated to such an extent that they were living separate lives. (ii) Issues on Appeal [9] The appellant argues five grounds of appeal: (1) The trial judge erred by failing to stay the prosecution because of unreasonable delay. The appellant argues that the trial judge erred by characterizing the period from January to September 2007 as defence delay and by finding that the delay caused only “marginal” prejudice. (2) The trial judge confused the jury by leaving unlawful act manslaughter as an alternative theory of liability. (3) The trial judge erred by instructing the jury on motive because the appellant was not charged with murder, and further erred by giving a one-sided instruction on motive. (4) The trial judge confused the jury with her instructions on causation. (5) The trial judge erred by failing to sentence the appellant for manslaughter based on criminal negligence and by failing to give enough weight to the mitigating considerations favouring a lenient sentence. B. RELEVANT BACKGROUND (a) The events the day Ibi Roncaioli died, July 20, 2003 [10] The appellant testified that in the weeks before his wife’s death, he had become convinced that her health was deteriorating. In the morning of July 20, 2003, he decided to take her blood for testing. She agreed but asked him not to hurt her. Ibi Roncaioli had collapsed veins, making it hard to draw blood. Therefore, the appellant took some lidocaine and bupivacaine, which he had brought home from the hospital three days earlier for his hip, to give his wife a local freeze so she would not feel the needle when he tried to draw blood. He injected a small amount of lidocaine in her right arm. He testified that he could not find a vein to draw blood, so he stopped. [11] Later, at about 10:00 in the morning, Ibi Roncaioli’s accountant, George Hegyi, and her real estate agent, Priscilla Wong, met the Roncaiolis to help them in buying a new bungalow, valued at about half of the price of their existing home. The appellant said the move to a smaller house was partly financial and partly a lifestyle choice. He testified that at first Ibi was reluctant to move, but eventually agreed. [12] After signing an offer to purchase at 1:00 p.m., the four went to lunch at the Red Lobster. Ibi Roncaioli ordered a cognac and began to act strangely. She was screaming, dropping her pizza and shaking. She loudly told the appellant she loved him and asked whether he loved her. Her face was white and she looked tired. Mr. Hegyi drove the Roncaiolis back to their home and left about 3:00 p.m. [13] For many years, the Roncaiolis had slept in separate bedrooms and after Mr. Hegyi drove them home that afternoon, Ibi Roncaioli went to her own bedroom. The appellant went to the library. He said, however, that her behaviour at lunch convinced him that she needed help. He returned to her bedroom to try once more to draw blood. Again she agreed if he would not hurt her. He injected the two anaesthetics in her right arm but could not draw blood from that arm. He tried the other arm but again was unsuccessful. He left a syringe and vials on the bedside table, turned on the television, and went back to the library. [14] At 6:00 p.m. the appellant checked on his wife. He said that she was sleeping soundly. He noticed the syringe on the floor. He picked it up and put it along with the vials of anaesthetics and containers in the garbage. The appellant went to Ibi’s bedroom again at 8:00 p.m. He said that her mouth was open and her tongue was hanging out. He felt for a pulse but could not find one. She felt cold. In his medical opinion, she was clinically dead. [15] The appellant drove over to his son’s home. He told his son and daughter-in-law that he could not wake Ibi and said, “I think she’s dead”. The appellant then returned home with his son. They called Mr. Hegyi at 9:00 p.m. and told him that Ibi was dead. Mr. Hegyi picked up Ms. Wong and they both came over before 10:00 p.m. At that point Mr. Hegyi called 9-1-1. The paramedics and police arrived quickly. At 10:34 p.m. Ibi Roncaioli was pronounced dead. Later, one of the police officers found alcohol and three empty vodka bottles in the kitchen. (b) The appellant’s evidence on the amounts of anaesthetics he injected [16] The appellant was first interviewed by the police the day after his wife died. He made no mention of injecting her with anaesthetics. [17] On January 21, 2004, six months after his wife died, the appellant was interviewed at the police station. By then, although unknown to the appellant, the police had a coroner’s report attributing Ibi Roncaioli’s death to multi-drug toxicity. During this interview, the appellant at first denied injecting Ibi with anaesthetics the day she died. Eventually, however, he acknowledged that he had done so. He admitted that during the day he may have injected her with as much as 19 cubic centimetres (“cc”) of lidocaine and bupivacaine combined – as much as 6 to 7 cc in the morning and 10 to 12 cc in the afternoon. [18] At trial, however, the appellant testified that he had injected only 6 to 7 cc during the course of the day. He suggested that his wife had injected herself with the rest of the drugs found in her body. (c) Expert evidence on the cause of Ibi Roncaioli’s death [19] The jury heard evidence about the cause of Ibi Roncaioli’s death from four experts. The Crown called Dr. Karen Woodall, a forensic toxicologist at the Centre for Forensic Sciences, Dr. Susan Belo, an anaesthesiologist and Dr. John Doucet, a forensic pathologist. The defence called Dr. Joel Mayer, a forensic toxicologist at the Centre of Forensic Sciences and an expert on pharmacology. [20] Blood and skin samples showed lidocaine, bupivacaine and alcohol in Ibi Roncaioli’s body. These toxicological findings served as the basis of the expert evidence. [21] Drs. Woodall, Belo and Doucet gave opinion evidence that the combined amount of lidocaine and bupivacaine in Ibi Roncaioli’s body was in the toxic range, potentially fatal and could have caused her death, even absent alcohol. Dr. Woodall said that she “would expect” the combination to be toxic. Dr. Belo said the combination was “likely toxic.” [22] Dr. Doucet, the pathologist, conducted a post-mortem on Ibi Roncaioli. He concluded that both drugs in aggregate – lidocaine and bupivacaine – had produced significant adverse affects. In his opinion, Ibi Roncaioli had died from multi-drug toxicity from the two anaesthetics and the alcohol. However, he also said that while alcohol was a contributing factor, lidocaine and bupivacaine alone could have caused Ibi Roncaioli’s death. [23] Dr. Mayer testified that he could not reach the unequivocal conclusion that lidocaine and bupivacaine alone had caused Ibi Roncaioli’s death. Alcohol could not be discounted; it would have exacerbated the toxicity of the two anaesthetics. [24] Finally, I note the appellant’s argument that the trial judge misstated some of the expert evidence in her review of the evidence for the jury. I am satisfied, however, that she did not materially misstate the expert evidence. Moreover, defence counsel, who had a draft of the charge in advance of it being given, did not object to the accuracy of the judge’s factual review. C. ANALYSIS First Issue: Did the trial judge err by failing to stay the prosecution for unreasonable delay? [25] We did not call on the Crown to respond to this ground of appeal. [26] The delay between the appellant’s arrest in January 2004 and the start of the trial in January 2008 was 48 months. The trial judge found that, of this period, 19.25 months were attributable to institutional delay, just “slightly over the high end” of the Morin guidelines and thus was acceptable. [27] The appellant contends that the trial judge erred in two respects: by characterizing the period from January to September 2007 as defence delay instead of institutional delay, and by finding that the overall delay only marginally prejudiced him. In our view, the trial judge did not err. [28] The trial was scheduled to begin in October 2006 but had to be discontinued because a main Crown expert, Dr. Woodall, was too ill to testify. The Crown offered to use the transcript of her preliminary inquiry evidence under s. 715 of the Criminal Code but the defence objected because it wanted to cross-examine her at trial. The trial judge acceded to the defence’s position. [29] In mid-January 2007 counsel appeared in assignment court to reschedule the trial. The trial was estimated to take six to eight weeks. The court suggested starting the trial in February. Defence counsel, however, asked for a September trial date because he was scheduled to start a murder trial for an in-custody accused on April 30. He said that a February date would not give him a proper “lag time” between the two trials. The trial judge agreed to put the matter over to September. The court, however, could not accommodate a September date and the trial was rescheduled to start in October. The trial judge characterized the delay from January to September as attributable to the defence. [30] In arguing that the period from January to September 2007 was institutional delay, the appellant relies on R. v. Godin, [2009] 2 S.C.R. 3, at para. 2 where Cromwell J. said that “scheduling requires reasonable availability and reasonable cooperation” but “does not require defence counsel to hold themselves in a state of perpetual availability”. It seems to me that defence counsel could reasonably have started this trial in February. On the estimates given, the trial would have finished by mid to late March, giving him at least a month to prepare for his murder trial. Even if we take a more charitable view of the demands on defence counsel, I would characterize the period from January to September 2007, not as institutional delay, but as delay caused by the unexpected illness of the Crown’s expert and thus as neutral delay or delay due to the inherent time requirements of the case: see for example R. v. A.J.W (2009), 257 O.A.C. 11 (C.A.), at para. 47. [31] The trial judge’s finding that the appellant was only marginally prejudiced by the delay was reasonable. The appellant did not testify on the s. 11(b) motion. His bail conditions were not onerous. Moreover, although the appellant’s doctor testified about his depression, the doctor acknowledged that the depression was due to many factors, of which the delay was but one, and was managed quite well with anti-depressant drugs. [32] In R. v. Kporwodu (2005), 75 O.R. (3d) 190 (C.A.), this court said, “Society has a high interest in ensuring that persons charged with [serious] crimes are tried on the merits of the charge. That interest however must be balanced against the prejudice occasioned to the [accused] by reason of the delay.” In balancing these interests in this case, the trial judge did not err in finding that the appellant’s s. 11(b) rights were not violated. [33] Therefore, we did not give effect to this ground of appeal. Second Issue: Did the trial judge confuse the jury by leaving unlawful act manslaughter as an alternative theory of liability? [34] The appellant says that he should have been charged only with manslaughter by criminal negligence. He contends that, in agreeing with the Crown’s position and charging the jury on manslaughter by an unlawful act (aggravated assault), the trial judge confused the jury. The appellant submits that this alternative theory of liability was either a veiled charge of murder or redundant. Also, the trial judge’s use of two separate decision trees to “guide” the jury’s deliberations exacerbated the confusion. I do not accept the appellant’s position. [35] First, at the outset of the trial, Crown counsel alerted the defence and the court that he was advancing two routes to manslaughter: And I think my friend is already on notice that the Crown is relying on two possible theories … the two theories are unlawful act and criminal negligence. … But I want him to be on notice from the outset of the trial of that so that there’s no misunderstanding. [36] The defence did not object to the Crown’s position, or claim that it prejudiced the appellant’s position or that it would confuse the jury. [37] Second, although the two routes to manslaughter overlap, they do not duplicate each other. Each has distinctive elements and relies on different evidence. The Crown’s closing shows how the two routes differ: If you find that Joseph Roncaioli intentionally injected Ibi Roncaioli with lidocaine and bupivacaine and that the quantities he injected endangered her life, then that constitutes manslaughter by the unlawful act of aggravated assault. The evidence of motive, his delay in calling anyone after she appeared dead and his admission that he had planned three days before his wife’s death to inject her might assist you in reaching this conclusion. ... If you find that Joseph Roncaioli injected Ibi Roncaioli with lidocaine and bupivacaine and showed wanton and reckless disregard for her life or safety because he injected her without checking whether or not the quantities he injected could kill, or without knowing how much he injected and without taking the necessary precautions for resuscitation, then that is manslaughter by criminal negligence. [38] To prove manslaughter by an unlawful act, the Crown had to prove the unlawful act of aggravated assault – being the intentional injection of all the anaesthetics found in Ibi Roncaioli’s body – and prove that this act endangered Ibi Roncaioli’s life. To prove manslaughter by criminal negligence the Crown had to prove that the appellant showed a wanton or reckless disregard for Ibi Roncaioli’s life or safety. The two routes to manslaughter do not duplicate each other, and therefore the charge on manslaughter by an unlawful act was not redundant. Nor did it amount to a veiled charge of murder. [39] Similarly, although as might be expected, some of the questions on the two decision trees replicated each other, the two trees were not identical. The nature of the charge and the evidence required the jury to consider similar issues at different stages of the analysis. [40] The real question underlying this ground of appeal is whether there is any risk the jury was confused or might have wrongfully convicted the appellant by being presented with two theories of manslaughter. I do not think that the trial judge’s charge confused the jury or would have led it to wrongfully convict the appellant. The central issues of identity and causation on which the verdict turned were quite simple and clear cut. If the jury found that Ibi Roncaioli injected herself with some of the anaesthetics or had a reasonable doubt whether she did, they were bound to acquit. Equally, if the jury found that the anaesthetics injected by the appellant were not a significant contributing cause of her death or had a reasonable doubt whether they were, they were also bound to acquit. Their verdict shows that they had no reasonable doubt on either issue. I would not give effect to this ground of appeal. Third Issue: Did the trial judge err by instructing the jury on motive? [41] In closing, the Crown urged the jury that the appellant had a motive to want to kill his wife: she had spent or given away virtually all of their savings and they had a poor marriage. In her charge, the trial judge set out the Crown’s position on motive and told the jury, “It is for you to decide whether Dr. Roncaioli had such a motive, or any motive at all, and how much or how little you will rely on it to help you decide this case.” [42] The appellant submits that the trial judge erred in instructing the jury on motive because he was not charged with murder, that is, the appellant was not charged with an offense that required the Crown to prove that he had an intent to kill his wife. Alternatively, the appellant submits that the trial judge marshalled only the evidence showing that he injected his wife with the anaesthetics and failed to marshal the evidence showing that Ibi Roncaioli may have injected herself. I do not agree with either submission. [43] Although motive is not an essential element of criminal responsibility, it is relevant in that it makes it more likely that the accused committed the crime. Here, although the appellant was not charged with murder – a fact the Crown expressly told the jury – the Crown could nonetheless rely on the appellant’s motive to want his wife dead as a piece of circumstantial evidence showing that the appellant intentionally injected his wife with the anaesthetics and thus helping to prove manslaughter by an unlawful act. Whether he had a motive to want his wife dead and its role, if any, in proving the Crown’s case were matters the trial judge correctly left for the jury to decide. [44] The trial judge did marshal the evidence showing that Ibi Roncaioli may have injected herself with the anaesthetics. She did so when discussing with the jury the issue of who injected the drugs. For example, she reminded the jury of the appellant’s testimony that, before leaving his wife’s room, he put a syringe and two vials on the table beside her bed, and that when he returned the syringe was on the floor. And the trial judge told the jury in some detail about Ibi Roncaioli’s alcohol and gambling addictions, and the financial stresses in her life, which may have caused her to self inject. [45] I would not give effect to this ground of appeal. Fourth Issue: Did the trial judge confuse the jury with her instructions on causation? [46] In her main charge the trial judge instructed the jury on causation as follows: For an act to cause someone’s death it must be at least a significant contributing cause, one that is beyond something that is trifling or minor in nature. There must not be anything that somebody else does later that results in Dr. Roncaioli’s act no longer being a significant contributing cause of Ibi Roncaioli’s death. [47] This ground of appeal arises from the second sentence of this instruction, which amounts to an instruction on intervening cause. Later in her charge, in answer to two jury questions and at the Crown’s request, the trial judge removed the intervening cause instruction. The appellant now argues that the trial judge’s instructions on causation confused the jury and removed from their consideration the possibility that “Ibi Roncaioli’s own unanticipated alcohol consumption broke the chain of causation.” [48] The appellant’s concern arose in the following way. In the pre-charge conference, the Crown agreed to an intervening cause instruction and the trial judge, as I have said, so instructed the jury. After her main charge, the jury asked the trial judge to clarify her instructions on causation. By then, the Crown had changed its position, and no longer wanted an intervening cause instruction. In responding to the jury’s question, the trial judge acceded to the Crown’s new position. She repeated her earlier instructions on causation but omitted the sentence “[T]here must not be anything that somebody else does later that results in Dr. Roncaioli’s act no longer being a significant contributing cause of Ibi Roncaioli’s death.” [49] The jury was alive to the omission because less than an hour later it returned with another question: From the re-read today we understand the charge to be “for an act to cause death, Dr. Roncaioli's act must be a significant contributory factor”. From yesterday's charge we understood “For an act to cause death, Dr. Roncaioli's act must be a significant contributory factor, and nothing that someone else did later, intervened in causing the death.” Which one is applicable[?] [50] The trial judge told the jury to stop deliberating. She discussed with counsel how to answer the question and the next day, over the defence’s objection, she told the jury that the answer to the jury’s original question was correct, not the instruction in her main charge. In other words, the jury should not consider intervening cause. To ensure that the jury understood the instruction, she repeated, correctly, the legal test for causation and the applicable evidence on the two routes to manslaughter. She also repeatedly told the jury that to convict they must be convinced beyond a reasonable doubt that the appellant injected the lidocaine and bupivacaine found in Ibi Roncaioli’s body, and that they must have no reasonable doubt she self injected these two drugs. [51] So, for example, her recharge contained the following instruction: Based on the circumstantial evidence you heard, specifically the evidence regarding the syringe and the vials and the finding of the syringe on the floor, if you are satisfied that the deceased self-injected the drugs, as well as the drugs that Dr. Roncaioli administered, then the Crown has not discharged its burden of proof and you must find Dr. Roncaioli not guilty of manslaughter by unlawful act. If that evidence leaves you with a reasonable doubt about whether Dr. Roncaioli injected the greater amount than that to which he admits, then the Crown has not discharged its burden of proof and you must find Dr. Roncaioli not guilty of manslaughter by unlawful act. If you are not satisfied beyond a reasonable doubt that Dr. Roncaioli injected Ibi Roncaioli with the required amounts of lidocaine and bupivacaine to produce the post-mortem concentrations you must find him not guilty of manslaughter by unlawful act. [52] It might well have been preferable had the trial judge not removed the intervening cause instruction. The question we must resolve, however, is whether, in doing so, she took away one of the appellant’s defences. In my view, the trial judge’s final instruction on causation did not take away any defence available on the evidence. [53] The appellant argues that the trial judge’s final instruction removed from the jury’s consideration the possibility that Ibi Roncaioli’s unanticipated consumption of alcohol broke the chain of causation. This argument must fail because there was no evidence and thus no air of reality to the suggestion that alcohol alone was an intervening cause of Ibi Roncaioli’s death. At its highest, alcohol may have exacerbated the toxic effects of the two anaesthetics. Moreover, Dr. Roncaioli could hardly claim that his wife’s consumption of six ounces of alcohol the afternoon of her death was unanticipated. He knew, as he acknowledged in his testimony, that she abused alcohol. [54] Thus, the only intervening cause that had an air of reality was Ibi Roncaioli’s own injection of the anaesthetics. On the preponderance of the evidence, the combined amount of the two anaesthetics found in Ibi Roncaioli’s body was likely toxic. If the jury was convinced beyond a reasonable doubt that the appellant alone injected these drugs then he was guilty. But if the jury was persuaded or had a reasonable doubt that Ibi Roncaioli self-injected some of the anaesthetics, then the appellant was entitled to an acquittal. [55] As the passage quoted in para. 51 illustrates, in her recharge, the trial judge repeatedly and correctly instructed the jury on Ibi Roncaioli’s possible self-injection. Although done in the context of her charge on identity – who injected the two anaesthetics – it amounted to a charge on the only potential intervening cause arising from the evidence – Ibi Roncaioli’s own injection of the two anaesthetics. Thus the express intervening cause instruction requested by the defence and removed by the trial judge would have done no more than replicate the critical issue the trial judge repeatedly told the jury to resolve: who injected the anaesthetics. I would not give effect to this ground of appeal. Fifth Issue: Did the trial judge err by failing to sentence the appellant for manslaughter based on criminal negligence and by failing to give enough weight to the mitigating considerations favouring a lenient sentence? [56] The trial judge gave lengthy and thorough reasons for the seven-year sentence that she imposed. She set out her factual findings, and then listed both the mitigating and aggravating consideration she weighed in her assessment of the appropriate sentence. She concluded that “a substantial penitentiary sentence is necessary to meet the needs of denunciation and deterrence and to reflect Dr. Roncaioli’s moral blameworthiness”. [57] Central to the trial judge’s conclusion was her finding that Dr. Roncaioli intentionally injected his wife with the two anaesthetics, and that those injections constituted an aggravated assault. Indeed, the trial judge also found that the aggravated assault was planned, and that “the manslaughter in this case more resembles murder than an accidental killing”. [58] The appellant submits that the trial judge erred in principle in sentencing him on the basis of unlawful act manslaughter. He argues that, as the basis for the jury’s verdict was unclear, he was entitled to the benefit of the doubt and to be sentenced for manslaughter by criminal negligence, which he contends is not as morally blameworthy as unlawful act manslaughter. In making this submission, the appellant relies on the decisions of this court in R. v. Cooney (1995), 98 C.C.C. (3d) 196 (Ont. C.A.) and R. v. Craig (2003), 177 C.C.C. (3d) 321 (Ont. C.A.), which I wrote. In Cooney at 204, the court said “the sentencing judge is obliged to give to the convicted accused the benefit of the doubt regarding the basis on which he was convicted by the jury”. In Craig I followed this principle. [59] I do not accept the appellant’s submission. On reflection, I have concluded that the principle set out in Cooney and Craig is inconsistent with several Supreme Court of Canada cases: see R. v. Brown, [1991] 2 S.C.R. 518, R. v. Tempelaar, [1995] 1 S.C.R. 760, and more recently R. v. Ferguson, [2008] 1 S.C.R. 96. Where the basis of the jury’s verdict is unclear, the correct principle is that the sentencing judge should make his or her own independent determination of the facts, consistent with the jury’s verdict. [60] In the case before us, the trial judge recognized that the basis of the jury’s verdict was unclear, and applied this principle. She made ten factual findings, which she listed, consistent with the jury’s verdict and with the evidence. For the purposes of sentencing, it was open to the trial judge to then determine that the appellant had committed unlawful act manslaughter and she did not err in doing so. [61] The trial judge considered one fact to be aggravating in determining the appropriate sentence: the appellant not only intentionally injected his wife with the anaesthetics but he had planned to do so. As the trial judge acknowledged, she had to be convinced beyond a reasonable doubt to rely on this finding in sentencing the appellant. Although she did not specifically explain why she was convinced beyond a reasonable doubt that the appellant’s act was planned, the evidence at trial could have led her to this conclusion. First, the appellant had brought home vials containing the anaesthetics three days earlier. Second, there was evidence of motive: the appellant acknowledged that he and his wife were having marital problems and that they led separate lives. And, there was evidence that the appellant had found out only months earlier that Ibi Roncaioli had depleted their financial resources. [62] However, even if one were to discount the finding of a planned assault, the trial judge had ample grounds for the sentence she imposed. She correctly identified other aggravating factors present in this case: 1) The appellant was in a double breach of trust as Ibi Roncaioli’s spouse and treating physician; 2) The appellant had admitted to intentionally injecting Ibi Roncaioli so this was not an accidental act; 3) It was necessary to denounce violence, particularly when a doctor uses his special skills to cause deadly harm. While the trial judge also considered planning the assault to be an aggravating feature, this finding is not necessary to uphold the reasonableness of the sentence. [63] The appellant’s other submission on sentencing – which I also do not accept – is that the trial judge did not give enough weight to the various mitigating considerations supporting a more lenient sentence. These considerations included the appellant’s “exemplary working life”, his good character, and his lack of a criminal record. The trial judge, however, expressly took these considerations into account. The weight to be given to them was a matter for her discretion. The sentence of seven years that she imposed was not unreasonable in the light of the other aggravating factors she identified. [64] I would therefore not interfere with the appellant’s sentence. D. CONCLUSION [65] I would dismiss the appellant’s appeal against his conviction for manslaughter. Although I would grant leave to appeal his seven-year sentence, I would dismiss his sentence appeal. RELEASED: May 13, 2011 “JL” “John Laskin J.A.” “I agree Robert P. Armstrong J.A.” “I agree H.S. LaForme J.A.”