COURT OF APPEAL FOR ONTARIO
Sharpe, MacFarland and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Rodney Darren Cain
Appellant
Philip Campbell, Jonathan Dawe and Sean T. MacDonald, for the appellant
David Finley, for the respondent
Heard: March 16, 2011
On appeal from the conviction imposed by Justice Todd L. Archibald of the Superior Court of Justice, sitting with a jury, on June 23, 2006.
1This appeal arises from the shooting and death of Joel Willis in 1985. At his first trial, the appellant was convicted of second degree murder and sentenced to life imprisonment. A key Crown witness later recanted his original account and the Minister of Justice directed a new trial. At the second trial, eighteen years after the first, the jury acquitted the appellant of second degree murder but convicted him of manslaughter. The appellant was sentenced to one day imprisonment plus time served. He appeals his conviction to this court, having abandoned his sentence appeal.
2The sole defence raised at both trials was self-defence. The appellant admitted to shooting the victim in the chest, in a back alley adjacent to an illegal after-hours “booze can” operated by the victim and his brothers in Toronto. The shooting followed an incident earlier the same night involving the victim, the victim’s brother Lester and the appellant’s brother Martin. That incident was in turn provoked by a dispute between Lester Willis and the appellant. Lester and the appellant were fellow drug dealers. When Lester was arrested on drug charges, the appellant promised to help pay his legal fees but never followed through. When the appellant’s brother Martin came to the Willis establishment earlier on the night of the shooting, Lester robbed him of drugs and money, apparently to make a point to the appellant. The appellant returned shortly thereafter with a loaded handgun. He told the club doorman, Harold Howe, that he wanted to speak to Lester. When Howe informed the Willis brothers that the appellant was outside, Joel Willis armed himself with a wooden bat and emerged from the club to confront the appellant. That confrontation led directly to the shooting and death of Joel Willis.
3Harold Howe was the crucial witness at both trials. At the first trial, he testified that Joel Willis had approached the appellant in a non-threatening fashion and that the appellant had fired while Willis was standing several feet away and not posing any immediate threat. At the second trial, Howe testified that Joel Willis had advanced in an aggressive fashion towards the appellant while waiving the bat, and that the appellant drew his gun and shot Willis only after Willis had closed the gap between them to a short distance and appeared to be about to strike the appellant with his upraised bat. At the second trial, the appellant relied heavily on Howe’s evidence in support of the claim of self-defence. The Crown sought and was granted a KGB ruling to admit Howe’s earlier evidence from the first trial. The appellant did not testify in his own defence and called no evidence.
4It was common ground at trial and on this appeal that the issue of self-defence rested solely on s. 34(2) of the Criminal Code:
34(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
5The appellant concedes that the trial judge delivered a model s. 34(2) instruction. However, he submits that the trial judge erred by failing to correct two allegedly improper submissions made by Crown counsel in his closing address: 1) the submission that the appellant failed to retreat, and 2) the submission that the appellant did not “fear” the victim Joel Willis.
Analysis
1. Did the trial judge err by failing to correct Crown counsel's submission to the jury on the issue of retreat?
6The appellant submits that in the following passage from Crown counsel’s closing address to the jury, Crown counsel invited the jury to conclude that the appellant’s failure to retreat during the early stages of the confrontation with Joel Willis precluded him from claiming self-defence:
Mr. Howe testified that it seemed as if Joel took a lot of steps towards the accused. For every step that Joel took towards the accused, the accused backed up a step. Interestingly, ladies and gentlemen, the accused never turned around to leave even according to Mr. Howe. He never left the parking area. We know that he had the laneway behind him. We know the configuration. He has the laneway behind him leading to Kenwood Avenue. It was a clear path of retreat. The only person we have heard was behind him and to his side was Joe Patterson. There is, certainly, no suggestion that on that date Joe Patterson was an ally of the Willises. Given his reason for visiting the club, it was more like he was an ally to the accused or Martin Cain. So we have Rodney Cain with a clear path of retreat behind him but [he] chooses to retreat slowly, and allow Joel Willis to close the gap.
Perhaps [counsel] for the defence will argue that it would have been dangerous for Rodney Cain to turn his back on Joel. That argument might hold some water in the final stages where Joel was fairly close to the accused, but what about earlier, earlier on before Joel had closed the distance? Why didn’t the accused make a genuine retreat at that point? [Emphasis added.]
7The appellant submits that Crown counsel left the jury with the misleading impression that the appellant’s failure to retreat while Joel Willis was still a safe distance away precluded him from later claiming self-defence under s. 34(2), even if retreat was no longer a viable option when the appellant actually shot Willis.
8The elements of the s. 34(2) defence were recently described as follows by Doherty J.A. in R. v. Craig, 2011 ONCA 142, at paras. 33, 36:
In R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3, at pp. 12-13, the court identified three elements to self-defence under s. 34(2) of the Criminal Code:
an unlawful assault, or at least a reasonable belief by the accused that he or she was being assaulted;
a reasonable apprehension of risk of death or grievous bodily harm; and
a reasonable belief that it is not possible to preserve one’s self from harm except by killing the perpetrator of the assault.
The elements of self-defence in s. 34(2) as described in Pétel have both a subjective and objective component. For example, an accused must actually apprehend the risk of death or grievous bodily harm. This is a subjective inquiry into the mind of the accused at the relevant time. That apprehension, however, must be reasonable in the circumstances as perceived by the accused. This is an objective inquiry that serves to limit the defence to circumstances where the accused’s conduct would be seen as normatively justified: [citations omitted].
9Unlike s. 35 of the Criminal Code, s. 34(2) does not require defendants to retreat in the face of an assault, but rather permits defendants to stand their ground during the early stages of a confrontation. However, as the appellant properly concedes, the possibility of retreat is relevant to the second and third elements of the s. 34(2) defence, namely, the issues of whether the appellant did have a reasonable apprehension of death or grievous bodily harm, and whether the appellant had a reasonable belief that it was not otherwise possible to save himself from harm except by killing Willis: see R. v. Proulx (1998), 1998 CanLII 6317 (BC CA), 127 C.C.C. (3d) 511 (B.C. C.A.), at paras. 39-51; R. v. Druken (2002), 2002 NFCA 23, 164 C.C.C. (3d) 115 (Nfld. C.A.), at para. 24; R. v. Nieto (2007), 2007 MBCA 82, 222 C.C.C. (3d) 510 (Man. C.A.), at para. 29.
10The issue of retreat was also relevant to the Crown’s position that, from the start, the appellant had come to settle a score and that he had not acted in self-defence.
11It follows that Crown counsel was not barred from making submissions as to the possibility of retreat. However, had Crown counsel told the jury that the appellant was precluded from raising the defence of self-defence because he had failed to retreat at the start of the confrontation, the respondent concedes that the trial judge would have been required to give a correcting instruction. The appellant in turn concedes that Crown counsel did not explicitly make that erroneous submission to the jury. The issue for us to decide is whether there was a sufficient risk that the jury could have understood Crown counsel to be making that erroneous submission, requiring a correcting instruction from the trial judge.
12We do not agree that the impugned passage in the Crown’s closing bears the meaning attributed to it by the appellant on appeal. We note that the appellant’s experienced and highly-skilled trial counsel made no objection to the trial Crown’s closing and did not request a correcting instruction. Moreover, when addressing the jury, trial counsel effectively joined issue with the Crown on the point by responding to the impugned portion of the Crown’s closing address as follows:
Now, the Crown tries to suggest that [the appellant] did have a choice. The Crown suggests that he could have retreated. Well, I suggest that in the fast-paced dangerous situation he found himself in, that option was not reasonably available to him. I suggest that a reasonable person in that dangerous situation would have believed there was no safe alternative. This so-called retreat option, in my respectful submission, would be far too dangerous. Mr. Cain couldn’t back his way out of danger. He tried that. Retreat would require that he turn his body, and most importantly and most dangerously it would require that he turned his back to Joel and the entire gang in order to run away, and that would expose the back of his head to his attacker’s bat.
13In our view, the lack of objection and the manner in which the appellant’s trial counsel responded provides significant support for the respondent’s position that there simply was no significant risk that the jury could have been led to believe that the appellant was precluded from relying on self-defence because he did not retreat at the initial stage of the confrontation.
14The trial judge made only passing reference to the issue of retreat in his charge. The only objection to the charge relevant to this point came from Crown counsel who submitted that the trial judge should have explained to the jury the Crown’s submission on the possibility of retreat. The trial judge refused to re-charge the jury on the point. The appellant argues, however, that the way in which the Crown explained his retreat theory when objecting demonstrates that he intended the jury to reject self-defence as a possibility. Whatever the Crown may have intended, it is clear from the argument following the Crown’s objection that neither the trial judge nor the appellant’s trial counsel perceived the Crown’s position to have the impermissible effect complained of on appeal.
15The entire incident from the moment Joel Willis emerged from the club with a bat until he was fatally shot lasted only a few seconds. As the appellant’s trial counsel recognized, the jury was entitled to consider the issue of retreat in relation to the appellant’s reasonable apprehension of death or grievous bodily harm and whether he had a reasonable belief that it was not otherwise possible to save himself from harm except by killing Willis. The jury was also entitled to consider the issue of retreat in relation to the Crown’s theory that the appellant came to the scene armed with a loaded gun, bent on revenge. We do not agree that when the jury deliberated on this case, it was left with a misleading or inadequate explanation of the relevance of retreat to the issue of the appellant’s s. 34(2) defence.
2. Did the trial judge err by failing to correct Crown counsel's submission to the jury on the appellant’s lack of fear?
16The appellant takes issue with the fact that in his closing address to the jury, Crown counsel submitted that the appellant did not “fear” Joel Willis because Willis was armed only with a wooden bat, while the appellant had a loaded weapon. The trial judge, following a standard s. 34(2) instruction, used the word “fear” rather than “reasonable apprehension” with respect to the issue of whether the appellant reasonably apprehended that he would be killed or seriously injured by Willis. The appellant submits that the jury could have rejected self-defence on the erroneous basis that, because the appellant was armed, he did not “fear” that he was going to die, even if he reasonably believed that Willis would kill or seriously injure him unless he shot Willis.
17In our view, the Crown’s closing submission that the appellant had nothing to fear related to the Crown’s overall position that the appellant had not acted in self-defence but had instead come to the Willis establishment as an aggressor, armed with a handgun, in order to avenge an insult to himself and his brother. Again, there was no objection made on this point at trial. The trial judge repeatedly instructed the jury that the appellant was entitled to the benefit of the s. 34(2) defence if he reasonably believed that Willis would kill or seriously injure him unless he shot Willis. We do not agree that the jury could have been misled into thinking that because the appellant was armed and able to meet any threat posed by the victim, he was somehow disentitled to rely on self-defence.
Conclusion
18The trial judge gave the jury a model charge on the elements of self-defence under s. 34(2) to which no objection is taken. Both at the beginning and at the end of his closing, Crown counsel explained to the jury that it was to apply the law as given by the trial judge. The trial judge also gave the standard explicit direction to that effect. The appellant’s arguments turn on possible interpretations of submissions made by Crown counsel. The people in the best situation to judge whether the jury could be misled by those submissions were the appellant’s experienced trial counsel and the trial judge. Neither attributed the meaning the appellant now seeks to attach to the Crown’s closing.
19The very able submission advanced on appeal by Mr. Campbell arises from the perception that if the jury accepted Howe’s evidence given at the second trial, it was bound to acquit on self-defence, and that since the jury did not acquit, it must have misapprehended the law. This view of the case ignores the fact that Howe was a difficult and unruly witness at the second trial and that the jury also had to take into account the very different version of the incident Howe gave at the first trial. The jury also had to consider the fact that the appellant came to the scene with a loaded handgun to settle a score. This was plainly not an unreasonable verdict or one that could only have been reached on the basis of a misunderstanding of the law.
20Taking all the circumstances into account, we cannot agree with the submission that the jury could have been led astray by anything said in the Crown’s closing address to the jury.
21Accordingly, the appeal from conviction is dismissed and the appeal from sentence is dismissed as abandoned.
“Robert J. Sharpe J.A.”
“J. MacFarland J.A.”
“H.S. LaForme J.A.”
RELEASED: April 14, 2011