Court of Appeal for Ontario

Date: 20220830 Docket: C69079

Judges: Pepall, Tulloch and Huscroft JJ.A.

Between: Her Majesty the Queen, Appellant and Kyle Sparks-MacKinnon, Respondent

Counsel: Benita Wassenaar and Nicholas Hay, for the appellant Anil K. Kapoor and Mariam Sheikh, for the respondent

Heard: March 23, 2022 by video conference

On appeal from the acquittal entered by Justice Maureen D. Forestell of the Superior Court of Justice January 7, 2021, sitting without a jury.

Reasons for Decision

[1] This is a Crown appeal from the decision of the trial judge acquitting the respondent of second-degree murder in the death of Charles Shillingford. It was not disputed that the respondent fired three shots at Mr. Shillingford on a downtown Toronto street in the early hours of the morning of October 31, 2015. The trial judge acquitted the respondent after finding that he acted in self-defence.

[2] The Crown cannot appeal an acquittal on the basis that the verdict is unreasonable. The Crown can appeal only on questions of law. In this case, the Crown argues that the trial judge erred in law by failing to consider the whole of the evidence; making a factual finding for which there was no evidence; failing to undertake a contextualized reasonableness inquiry; and failing to consider the risk to third parties.

[3] We reject these arguments. There is no basis to conclude that the trial judge failed to consider the whole of the evidence. Although we accept that the trial judge erred in making a finding for which there was no evidence, this error does not have an overriding effect. The trial judge’s legal analysis reveals no error that would permit this court to intervene.

[4] The appeal is dismissed for the reasons that follow.

The trial judge considered the whole of the evidence

[5] The Crown argues that the trial judge erred in law by considering the evidence “seriatim” and failing to consider the cumulative impact of the evidence in relation to the ultimate issue. The Crown specifically raises as an example of the trial judge’s piecemeal approach her treatment of the evidence of two witnesses, Christopher Szybalski and Matthew Stewart, which it says powerfully supported the Crown’s theory that the respondent intended to shoot Mr. Shillingford and did so while the victim sat in his car. When considered in the context of the evidence as a whole, their evidence militated against the respondent’s self defence claim.

[6] We do not agree.

[7] There is no one way in which the evidence must be addressed in a trial judge’s reasons. What matters is that the evidence is considered as a whole: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 32, 43; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 30. The Crown acknowledges that the trial judge self-instructed as to the need to consider the evidence as a whole. She was cognizant of the two most significant inconsistencies in the respondent’s evidence, and returned to address them as part of her overall assessment of the respondent’s evidence in considering whether he faced the threat of force from Mr. Shillingford. She found the witnesses Szybalski and Stewart to be sincere and honest but also found that she could not rely on their evidence to find that the respondent approached the victim’s car before firing his gun. This was the trial judge’s call to make. She made no legal error in not drawing the inferences proposed by the Crown.

The trial judge’s fact-finding error does not warrant overturning the verdict

[8] Mr. Shillingford had a gun that was found in a zipped inner pocket of his vest, with a bullet in its chamber. The gun had not been fired. The trial judge found that it was an available inference that Mr. Shillingford could have taken steps to conceal his gun, not realizing the seriousness of his wounds. In the context of discussing this issue the trial judge noted that Mr. Shillingford had not called the police or an ambulance when he was shot on August 9, 2015, and it was an available inference that he did not do so because he needed to conceal evidence of his own illegal activity, which was presumably possession of a gun. She also noted that it would be dangerous for her to base findings of fact on assumptions about what a person would or would not do after being shot and fleeing from the person who shot them. Having considered all of the evidence, she was satisfied that a reasonable doubt had been raised.

[9] However, there was no evidence that Mr. Shillingford had a gun on August 9. The Crown reiterates its position that the compelling inference was that Mr. Shillingford obtained a weapon after he was shot on August 9.

[10] The respondent concedes that the trial judge erred concerning whether Mr. Shillingford had a gun on August 9 but argues that the trial judge’s error was harmless, as it was not essential to accepting his self-defence plea.

[11] We accept there was no evidence that Mr. Shillingford had a gun on August 9. But the Crown’s burden is not simply to establish that the trial judge made an error; the Crown must also establish that the error had a material impact on the verdict. In Vézeau v. The Queen, [1977] 2 S.C.R. 277, at p. 278, the court stated that the Crown is required to establish that the verdict “would not necessarily have been the same” but for the error. In R. v. Morin, [1988] 2 S.C.R. 345, the court described this as a heavy onus that must be established with “a reasonable degree of certainty”: at p. 348.

[12] The Crown cannot meet that heavy onus in this case. The trial judge expressly instructed herself not to base her findings of fact on assumptions. She accepted that it was logical that a person who had been shot would use his strength to escape and get help, rather than conceal his own gun, but also found that it was an available inference that Mr. Shillingford could have taken steps to conceal his gun, not realizing the seriousness of his wounds. The trial judge found that the inference that he did so was available given the respondent’s evidence that Mr. Shillingford threatened him with his gun and that the gun was found in his zipped vest pocket following the shooting. Given the availability of this inference, it cannot be said there is a “reasonable degree of certainty” that the verdict would not necessarily have been the same if the mistake concerning Mr. Shillingford’s conduct on August 9 had not been made.

The trial judge did not err in her analysis of self-defence by failing to undertake a contextualized reasonableness inquiry

[13] The Crown argues that the trial judge confined her analysis to a consideration of whether the respondent was facing a threat of lethal force and placed undue weight on the fact that Mr. Shillingford had a gun. Although the trial judge reviewed the factors going to self-defence under s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46, the trial judge erred by focusing on a single moment: when the respondent said Mr. Shillingford was pointing a gun at him. The Crown argues that the trial judge effectively reasoned that Mr. Shillingford’s gun “rendered the [respondent’s] ‘role in the incident’ irrelevant, which is contrary to s. 34(2) and an error of law.” The respondent played a central role in creating a highly risky scenario and it was incumbent upon the trial judge to consider whether the respondent’s actions eliminated “all other means to respond with anything less than deadly force”: R. v. Khill, 2021 SCC 37, at para. 130.

[14] The trial judge considered all the evidence and found that the respondent’s testimony raised a reasonable doubt about whether he faced a threat of force – whether Mr. Shillingford had pointed a gun at him and used threatening words. Thus, the Crown did not disprove the first element of self-defence beyond a reasonable doubt. She found, further, that although the respondent’s initial motive was to scare the other driver of the car, whom he did not recognize, he was acting defensively when he fired his gun. She went on to consider whether the respondent acted unreasonably in shooting Mr. Shillingford and addressed each of the factors set out in s. 34(2).

[15] As Martin J. explained in Khill at para. 94, “the trier of fact must consider the accused’s role throughout the incident to the extent it informs the reasonableness of the act underlying the charge”. The accused’s conduct is relevant “regardless of whether that role involved good, ‘pro-social’ conduct, or conduct that was provocative, aggressive, unlawful, reckless, risky or otherwise fell below community standards”.

[16] The new standard of reasonableness in s. 34(2) is overarching in nature and must be judged holistically and objectively. As Martin J. explained, at para. 90:

Where an accused “opts to stand their ground or… advance while armed towards a perceived threat rather than de-escalating or reassessing the situation as new information becomes available, a trier of fact is entitled to account for this role when assessing the reasonableness of the accused’s ultimate act.

Reasonableness includes concepts like provocation and unlawfulness but is not limited to or circumscribed by them. While aggressive, unlawful, or provocative conduct remains highly probative and can support a finding of unreasonableness, under the new regime it is open to a trier of fact to find otherwise: at para. 99.

[17] In this case, the trial judge considered the respondent’s role in the incident at length, including his actions leading up to the confrontation with Mr. Shillingford. She found that he bore “significant responsibility for bringing about the circumstances that led to his need to defend himself”, and she had “serious concerns” about his conduct. However, in all the circumstances the trial judge could not conclude beyond a reasonable doubt that his shooting of Mr. Shillingford was unreasonable. As she stated, self-defence is not denied to a person who breaks the law or conducts themselves in a dangerous manner.

[18] The trial judge’s statement that she reached her conclusion “because the threat that [the respondent] faced at the point that he pulled the trigger of his gun was the threat of death” cannot be read without regard to the context noted above. It would have been a legal error if the trial judge had based her conclusion solely on a single moment, but it is plain that she did not do so. She considered all the relevant considerations, including the respondent’s responsibility for having put himself in the situation that required him to defend himself.

[19] The Crown’s submissions invite this court to reweigh the relevant considerations on appeal. That is not our role. Appellate courts may not translate objection to a trial judge’s factual findings and inferences into legal errors: R. v. George, 2017 SCC 38, 349 C.C.C. (3d) 371, at para. 17; R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, at para. 42. The law leaves the assignment of weight to the relevant considerations to the trier of fact.

[20] Moreover, there is no Crown appeal from an unreasonable acquittal under s. 676(1)(a) of the Code: R. v. Chung, 2020 SCC 8, 386 C.C.C. (3d) 523, at paras. 10-11, per Martin J., and at para. 31, per Karakatsanis J., dissenting; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 32-33; and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 33.

[21] In short, there is no basis for this court to interfere with the trial judge’s findings.

The trial judge did not err in her analysis of self-defence by failing to consider the risk to third parties

[22] The Crown argues that the trial judge erred in law by failing to consider the presence of third parties in downtown Toronto in determining whether the respondent acted reasonably in the circumstances. This was a relevant consideration, especially given the respondent’s role as an initial aggressor. In any event, the Crown does not suggest that this alleged error should be determinative of the result standing alone but says that it should be considered in combination with the other errors it alleges.

[23] This argument was raised at trial but not addressed by the trial judge. We are not satisfied that any error was made in this regard. The trial judge was not obligated to address in her reasons every matter raised, and her failure to mention this issue does not mean it was not considered.

Conclusion

[24] The appeal is dismissed.

S.E. Pepall J.A.

M. Tulloch J.A.

Grant Huscroft J.A.