Background
Amanda Clement developed romantic feelings for Garry Rolland, a mechanic who worked for her brother, while Rolland was in a relationship with the complainant. Beginning in February 2019, the complainant received threatening text messages from an unknown number. On the night of February 18, 2019, the complainant was ambushed in her driveway by an unknown male who punched her unconscious, pinned her down, and cut her throat with a sharp object. She heard the appellant’s distinctive laugh, saw the appellant approach from an SUV, and heard the appellant direct the male to cut her deeper and kill her. The appellant then kicked the complainant in the ribs, spit on her, and threatened that she would “end up in the ditch” if she reported the incident.
Clement was convicted at trial before Justice Kehoe of the Ontario Court of Justice on March 21, 2022, on charges of assault, assault with a weapon, uttering threats, and obstruction of justice. She was sentenced on August 22, 2022 to a global custodial sentence of 18 months (reduced to 14 months after pre-sentence custody credit). At trial, Clement testified she was home at the time of the assault, with support from her daughter Lauren Gale. The trial judge rejected both the appellant’s testimony and her daughter’s alibi evidence in their entirety, finding the complainant to be credible and her identification of the appellant well-supported by prior familiarity, recognition of a distinctive laugh, and consistent text message evidence.
On appeal, Clement argued that the trial judge misdirected herself on the second branch of the W.(D.) credibility framework (from R. v. W.(D.), [1991] 1 S.C.R. 742), failed to consider the totality of the alibi evidence, and erred in not applying Gladue principles (from R. v. Gladue, [1999] 1 S.C.R. 688) at sentencing despite evidence of possible Indigenous ancestry.
The Court’s Holding
Justice Sossin, writing for a unanimous panel, acknowledged that the trial judge did misstate the second branch of the W.(D.) framework. The trial judge’s version omitted the key concept that exculpatory evidence not affirmatively believed may nonetheless raise a reasonable doubt when considered in the context of the whole record. The trial judge instead effectively restated the third branch of W.(D.) twice. However, the Court of Appeal held this error was not fatal to the convictions. Where a trial judge completely and explicitly rejects the accused’s testimony as unreliable and not credible — as occurred here — the omitted branch of W.(D.) has no work to do, because there is no exculpatory evidence that could “reasonably be true.” The court reaffirmed the principle from R. v. Dinardo, 2008 SCC 24, that what matters is whether the substance of the W.(D.) instruction was respected.
The court further rejected the argument that the trial judge ignored portions of the alibi evidence. The trial judge specifically addressed why the timestamped phone photographs did not establish the appellant’s presence at home, and adequately addressed the timing problems with the alibi defence more broadly. The trial judge was not required to parse Ms. Gale’s evidence component by component; her characterization of it as wholly unreliable was sufficient. On sentence, the court held the trial judge did not err by declining to formally apply Gladue factors: the Ontario Native Women’s Association could not substantiate the appellant’s claimed Indigenous ancestry, and the trial judge appropriately considered the appellant’s difficult upbringing and resulting mental health challenges through the general sentencing framework.
The Court of Appeal granted leave to appeal sentence but dismissed both the conviction and sentence appeals.
Key Takeaways
- A trial judge’s misstatement of the second branch of the W.(D.) framework is not reversible error where the judge has comprehensively and explicitly rejected the accused’s exculpatory evidence as wholly unreliable and not credible — the omitted branch has no operative effect in such circumstances.
- An alibi defence grounded in the accused’s own testimony is a complete alibi; however, a total rejection of that testimony on credibility grounds, where that rejection is adequately reasoned and supported by the record, satisfies the trial judge’s obligation to grapple with the alibi evidence.
- Gladue principles require a foundation in substantiated Indigenous ancestry or connection; where that cannot be established, a sentencing judge may still account for the underlying systemic factors — such as intergenerational trauma, domestic violence, and substance abuse — through the general sentencing framework without formal Gladue application.
- The vicious and premeditated nature of an assault can be treated as an aggravating factor at sentencing even when the assault itself forms an essential element of the offence charged, provided the aggravating characterization goes beyond the bare elements.
Why It Matters
This decision reinforces the Ontario Court of Appeal’s consistent line of authority on W.(D.) errors: the self-instruction framework is an important safeguard against wrongful conviction, but technical misdescription is not automatically reversible. The operative question is whether the substance of the instruction was respected on the facts as found. Where a trial judge’s credibility findings are categorical and well-supported, the second branch — concerned with exculpatory evidence that is not affirmatively accepted but could reasonably be true — is simply not engaged.
The case also offers practical guidance on Gladue applications: the mere assertion of Indigenous ancestry, unsupported by verification from a recognized First Nations or Indigenous community, is insufficient to trigger the formal Gladue framework. Defence counsel must ensure that ancestry claims can be substantiated in advance of sentencing to obtain the full benefit of individualized Gladue analysis, though courts retain discretion to consider underlying systemic factors regardless.