COURT OF APPEAL FOR ONTARIO
Miller, Dawe and Wilson JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Jamar Stephens
Appellant
Breana Vandebeek and Caraid McGinty, for the appellant
Katie Doherty, for the respondent
Heard: February 11, 2026
On appeal from the convictions entered by Justice Andrew J. Goodman of the Superior Court of Justice, sitting with a jury, on August 17, 2023.
1During the early morning hours of September 29, 2019, a group of men that included the appellant, Jamar Stephens, were part of a crowd that was standing on the sidewalk outside a nightclub in downtown St. Catharines. Shortly after 2:30 a.m., a man named Saeed Savalanpour came out of the nightclub. He approached the group of men, shouted something like "don't move", produced a gun, and began shooting. At least one person in the group returned fire. Mr. Savalanpour was struck by two bullets, and five bystanders caught in the crossfire were also struck and wounded.
2Mr. Stephens was tried by a judge and jury on a multi-count indictment charging him with various offences arising out of the shooting. The trial judge directed acquittals on most of the charges, but left with the jury two counts of aggravated assault, the first particularized to name Mr. Savalanpour as the victim, and the second particularized to name the five bystanders who had also been shot.1 The jury found Mr. Stephens guilty on both counts.
3Mr. Stephens appeals against his convictions.2 His grounds of appeal can be divided into three groups. First, he argues that the trial judge erred by not granting him a mistrial as a remedy for various improprieties in Crown counsel's opening address to the jury. In the alternative, he argues that the trial judge did not give the jury a sufficiently strong corrective instruction.
4Mr. Stephens's second ground of appeal arises out of the trial judge's decision not to grant the defence's motion for directed verdicts of not guilty on all counts. The trial judge directed acquittals on five firearms charges, finding that there was insufficient evidence to permit the jury to reasonably conclude that Mr. Stephens had been armed with a gun. However, he declined to enter acquittals on the two counts of aggravated assault, on the basis that the jury could find Mr. Stephens liable as a secondary party. Mr. Stephens argues on appeal that this was an error.
5Third, Mr. Stephens contends that the trial judge erred by refusing to instruct the jury on self defence.
6For the following reasons, I would not give effect to any of these grounds, and would accordingly dismiss the appeal.
A. Factual background
7Much of the evidence at Mr. Stephens's trial was presented through a lengthy agreed statement of facts. The jury was also shown video footage from security cameras located around the area of the shooting, and heard evidence from eyewitnesses, including four of the five bystanders who had been shot. Mr. Stephens also testified in his own defence.
1. Evidence regarding the shooting
8The shooting took place at around 2:30 a.m. on the morning of Sunday, September 29, 2019, outside Karma Nightclub in downtown St. Catharines. The nightclub is located on the north side of St. Paul Street, between Queen Street and William Street. Mr. Savalanpour attended the club that night with two friends, arriving at around 12:20 a.m. He and his friends were referred to at trial as "Group 1".
9Mr. Stephens arrived in downtown St. Catharines at around 2:00 a.m., along with a number of other men who had travelled in at least four different vehicles. Mr. Stephens and his cousin, Shamaree Wilson, had driven together in one vehicle from the Greater Toronto Area. The other men who arrived in separate vehicles included Mr. Stephens's brother Dwight Stephens, his cousin Shaun Myers, and a friend named Jayson Hypolite. These five men, along with five other unidentified men who can be seen with them on the videos, were referred to collectively at trial as "Group 2". It was an agreed fact that Mr. Stephens was the man who can be seen on the videos wearing a blue "Champion" brand hooded sweatshirt. It was also an agreed fact that Mr. Savalanpour had some connection with Mr. Stephens's cousin Mr. Myers, since screenshots of his photo were found on Mr. Savalanpour's phone. This was the only evidence of any link between the two groups.
10Mr. Stephens and the other men in Group 2 eventually joined a crowd of people who were congregating on the north sidewalk of St. Paul Street, in front of and on either side of Karma Nightclub. The men in Group 2 were standing in and around a rectangular recessed storefront area to the west of the nightclub, which was referred to at trial as "the cubby".
11At approximately 2:30 a.m., Mr. Savalanpour and his friends came out of the nightclub and walked west along St. Paul Street in the roadway. Mr. Savalanpour then stepped onto the north sidewalk and walked quickly towards the men in Group 2. Witnesses described hearing a man in the street say something like "don't move", and one witness also saw this man raise a gun. It was an agreed fact that this man was Mr. Savalanpour. Multiple shots were then fired. Forensic evidence established that there were at least two shooters, and it was an agreed fact that one of the shooters was Mr. Savalanpour.
12The shooting was captured by a security camera across the street, but the video quality is poor, in part because the sidewalk is not well-lit. Essentially, the video shows a man, agreed to be Mr. Savalanpour, moving north onto the sidewalk from the roadway into the crowd, and then running back south across St. Paul Street while the crowd scatters. When Mr. Savalanpour is running south across the street the video shows him holding a handgun. No gunshot flashes are observable on the video, and nobody else in the crowd can be seen with a gun.
13Mr. Savalanpour was shot twice in his lower abdomen. Five bystanders also required medical treatment for gunshot injuries. Two had serious leg injuries that required surgery.
14Four of these injured bystanders were called as witnesses at trial. Three testified that they heard gunshots but did not see anyone with a gun, and did not see who had shot them. The fourth injured eyewitness, Michael Huggan, described seeing a masked black man step into the street, hold up a gun and say "don't move", and start firing. He could not identify this man, but it was an agreed fact at trial that this first man with a gun was Mr. Savalanpour.
15Mr. Huggan also saw a second man in the crowd duck, pull out a gun, and start shooting. He described the second man as "shooting wildly" and not aiming at anyone. This man started out in the storefront "cubby", but ducked and ran away, firing behind himself with his arm extended while he ran. Mr. Huggan testified:
He wasn't looking where he was shooting after he ducked. Like, as soon as he moved and started to duck, the guy off the street started shooting. So, he couldn't see where he was shooting. He just kept firing … wildly behind him.
16The second shooter "took maybe four steps", after which "he stopped shooting and just started running and kept running". Mr. Huggan could not identify or describe this second shooter. He testified that it was the man in the street who fired first, after which both men fired simultaneously. Mr. Huggan thought there were about seven shots fired altogether. He only realized some time later that he had himself been shot in the leg, and "definitely" thought that this shot must have been fired "by the guy running away and shooting wildly", because the first shooter "wasn't shooting towards me in my direction at all", whereas the second shooter "was shooting to my direction, and to the street, and anywhere, wherever else he was, his hand went".
17The video shows that when the shooting started, a man who resembles Mr. Stephens was standing on the sidewalk close to but outside the storefront cubby. The video shows this man then running away, but does not show him holding a gun or appearing to fire any shots behind him, as described by Mr. Huggan.
18The police found eight 9-millimetre cartridge casings on the roadway and north sidewalk of St. Paul Street. Testing determined that these casings had been fired from at least two different firearms – two from one firearm, and six from a different firearm. One of the bullets that hit Mr. Savalanpour remained lodged in his buttocks, while a second 9-millimetre bullet with his DNA on it was found at the scene. The police also found two other fragmented metal bullet jackets on the north sidewalk, and a third bullet fragment was recovered from one of the shooting victims. The calibre of the gun or guns that had fired the three fragmented bullets could not be determined. It could reasonably be inferred that Mr. Savalanpour did not shoot himself, and Mr. Huggan testified that he believed he had been hit by a bullet fired by the second shooter. There was no direct evidence as to who fired the shots that hit the other four bystanders. However, the evidence about where three of the other shooting victims had been standing when they were shot also supported the inference that they had probably also been struck by bullets fired by the second shooter.
19Video footage shows Mr. Stephens and Mr. Wilson running away from the scene of the shooting, going west on St. Paul Street and turning north onto William Street. Video then shows Mr. Stephens's car driving away from where it had been parked in the area of May Alley, which runs off William Street north of and parallel to St. Paul Street.
20An eyewitness named John Marshall testified that he had been standing in a parking lot on William Street north of St. Paul Street when he heard gunshots. "A lot of people" then came running around the corner and up William Street. Mr. Marshall saw a man holding a handgun in his left hand run past him and turn into May Alley. The only thing Mr. Marshall could say about this man's appearance was that he had been wearing a blue "long baggy T-shirt".
21The police later came to suspect Mr. Stephens of being involved in the shooting, and obtained an authorization to intercept his telephone communications. In March 2020, approximately six months after the shooting, they executed a warrant to search Mr. Wilson's residence. Shortly after this search began, the police intercepted a call between Mr. Stephens and his girlfriend in which she reported the search of Mr. Wilson's residence and told him that it was "for Niagara". Mr. Stephens responded by directing his girlfriend to "go pick that shit up from my house". The police later arrested her and found her in possession of a .32 calibre revolver, a number of .32 calibre bullets, and a Glock 9-millimetre magazine containing unfired 9-millimetre bullets.
22It was undisputed that Mr. Stephens's .32 calibre revolver could not have fired any of the 9-millimetre cartridge casings that had been found at the scene of the shooting, or the 9-millimetre bullet that had Mr. Savalanpour's DNA on it. However, it could not be ruled out that the revolver could have fired one or more of the three fragmented bullets, since their calibre could not be determined.
2. The Crown's theory that Mr. Stephens was the second shooter
23The Crown's theory at trial was that Mr. Stephens was the second shooter described by Mr. Huggan. This theory was based on the following: (1) the forensic evidence did not rule out the possibility that the three bullet fragments of indeterminate calibre (two found at the scene, and one surgically removed from one of the shooting victims) could have been fired by Mr. Stephens's .32 calibre revolver; (2) Mr. Marshall saw a man in a blue shirt holding a gun run past him up Wiliam Street and turn into May Alley. (Mr. Stephens had been wearing a blue hoodie, had run up William Street, and drove away in a vehicle that had been parked just off of May Alley.); (3) video footage of Mr. Stephens after the shooting shows him at the corner of William Street and St. Paul Street before running north up William Street. According to Crown counsel at trial, stills from this video, while "pixelated" and "blurry", on close examination show that Mr. Stephens might possibly be holding something in his hand, which the Crown argued could be a gun.
24As I will discuss later, the trial judge directed verdicts of acquittal on the various firearms charges against Mr. Stephens, in part because he did not agree that the video stills actually showed Mr. Stephens holding anything in his hands. The trial judge also noted that the video of the shooting showed that Mr. Stephens had been standing outside the "cubby" when the shooting started, whereas Mr. Huggan described the second shooter as having been inside the cubby before running away. Moreover, Mr. Marshall had described the man with a gun he saw running up William Street as wearing a "long baggy T-shirt". While Mr. Stephens's hoodie was blue, it was not long or baggy. The trial judge concluded that the evidence as a whole fell "well short" of establishing that Mr. Stephens was one of the shooters. However, he declined to direct acquittals on the two charges of aggravated assault, finding that it was open to the jury to find Mr. Stephens guilty of these charges as a secondary party, even if he did not fire any shots himself.
3. Mr. Stephens's evidence
25After the directed verdict ruling, Mr. Stephens testified in his own defence. He maintained that he had travelled from Toronto that night with his brother and two cousins to meet Mr. Hypolite, who lived in the Niagara region, in order to attend an after-hours "farm party" that was going to be held somewhere in the Niagara countryside. He knew one of the other men they met up with in St. Catharines only by his first name, and did not know any of the other four men.
26Mr. Stephens explained that his group joined the crowd on St. Paul Street to socialize and kill time because the party would not start until later, after the downtown clubs had closed. While they walked around, his cousin Mr. Myers, who was a "local famous" rapper, took a photo and posted it on social media. The group had been standing near the Karma Nightclub when a man who was a stranger to Mr. Stephens at the time, but who he now knows was Mr. Savalanpour, came towards them, pointed a gun at Mr. Myers, and said "don't move". Mr. Stephens then heard shots, and he turned and ran away.
27When he got back to where his car was parked and was joined by Mr. Wilson, Mr. Myers, and one of Mr. Myers's friends, Mr. Stephens realized that he had been shot, and that one bullet had passed through his left calf and another had grazed his right ankle. Mr. Wilson drove Mr. Stephens's car back to Toronto. Once they got back to Toronto, Mr. Stephens decided not to go to the hospital, because his injuries were not serious, and Mr. Wilson did not want to deal with the police.
28Mr. Stephens acknowledged in his trial testimony that he had bought the revolver that the police seized from his girlfriend in March 2020 "a year or two" earlier, and testified that the person who sold it to him had also at the same time given him the 9-millimetre Glock magazine. However, Mr. Stephens maintained that he never took the gun out of his house, and denied having it with him on the night of the shooting.
29The trial judge held that Mr. Stephens's admission that he had owned the .32 revolver at the time of the shooting "opened the door" to the jury finding him guilty of the aggravated assault charges as a principal. He accordingly permitted the Crown to go to the jury with its original theory that Mr. Stephens was the second shooter, although he told the jury to be "very cautious" about drawing this inference.
B. Analysis
1. Grounds arising from the mistrial ruling
30The defence moved for a mistrial after the Crown's opening address, arguing that Crown counsel had violated the rule that "the opening address is not the appropriate forum for argument, invective, or opinion": R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 338.
31Among other things, during his opening address Crown counsel had repeatedly expressed his opinion about what the videos would show, including suggesting that the jury would be able to infer that the men in Group 2 had been looking for someone, and would be able to see Mr. Stephens holding a firearm. He also made comments that could have been taken as implying, inaccurately, that Mr. Huggan would positively identify Mr. Stephens as the second shooter. Crown counsel also told the jury that the evidence of Mr. Stephen's efforts to have his girlfriend remove the .32 calibre revolver from his residence would support "[t]he irresistible inference" that he had used this gun during the shooting. The defence also objected to Crown counsel having analogized the criminal burden and standard of proof to the assembly of a jigsaw puzzle with some missing pieces.
32The trial judge agreed that Crown counsel's opening address had gone "too far", but held that "[a] mistrial is an extreme remedy", and that he would instead give the jury a corrective instruction. He explained:
I do not like to correct counsel, either in openings or closings, as I rarely have to do that. I must correct the opening in this case. I am going to tell them to disregard your statements regarding inferences, opinion and the like. I don't wish to embarrass the Crown at the outset of trial, but it's the only way I can salvage this trial without granting the relief of a mistrial.
33On appeal, Mr. Stephens argues that "[t]he only appropriate remedy was a mistrial", and that no corrective instruction would have been sufficient. In the alternative, he argues that the corrective instruction the trial judge gave the jury did not go far enough.
34As Brown J.A. observed in R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321, at para. 35:
Mistrials are a remedy of last resort and should only be declared to avoid miscarriages of justice: R. v. A.G., 2015 ONCA 159, 124 O.R. (3d) 758, at para. 50. A trial judge is best positioned to assess whether a mistrial is warranted in the circumstances. Consequently, an appellate court owes significant deference to a trial judge's determination whether to grant a mistrial, and should only interfere with a decision to deny a mistrial if that decision is clearly wrong or based on an erroneous principle.
35I see no basis for interfering with the trial judge's determination that a corrective instruction would serve as a sufficient remedy in this case. In Clause, where Crown counsel had referred in his opening to evidence that was later ruled inadmissible, Brown J.A. found that giving a corrective instruction "certainly fell within the range of acceptable approaches by which to mitigate the prejudice flowing from the improper references in the Crown's opening": Clause, at para. 37. This same conclusion holds true here, where Crown counsel's expressions of opinion and arguable misstatements of the anticipated admissible evidence were far less prejudicial.
36I am also not persuaded that the corrective instructions the trial judge gave the jury were inadequate. He told the jury:
We just finished hearing the opening statement from the Crown Attorney. And there are certain rules with respect to opening statement and you can appreciate the parties have their own zeal and are advocates on behalf, Crown on behalf of the state, [defence counsel] on behalf of the client. And, of course, you have heard what the Crown proposes to call as evidence and that indeed is proper. But at times, with respect, [Crown counsel] suggested and asked you to draw inferences, and that's really reserved for closing arguments, not for opening arguments. So I have to direct you to ignore those comments. I am not going to repeat those comments because I don't want them to be percolating in your mind, but any time where [Crown counsel] asked you to draw an inference, irrefutable inference, or asked you to incorporate the evidence with any opinion that he provides with respect to the case, you have to ignore that.
Basically, the opening is strictly to outline what the evidence may or may not be. This is the roadmap, proposed evidence. It may come to fruition. The Crown hopes it does, but if it doesn't, of course, you can consider that as well.
So again, please ignore any inferences, any questions as what the evidence might suggest. It's up to you to make that conclusion but only if, at end of the trial, and only after you have heard the evidence, and only after then can the parties persuade you by asking you to draw inferences.
37Mr. Stephens argues that the trial judge should have expressly told the jurors that Crown counsel had acted improperly. I do not think that such a personal rebuke was necessary or appropriate. Rather, the trial judge's clear and sharp direction that the jury should ignore Crown counsel's statements of opinion and his invitations to draw inferences adequately addressed any concern that jurors might not receive the evidence at trial with open minds.
38I am also not persuaded that it was necessary for the trial judge to specifically correct Crown counsel's comments about Mr. Huggan's evidence. Crown counsel told the jury – accurately – that Mr. Huggan was expected to testify about seeing "a person running away with his arm stretched back, discharging [a] firearm". Crown counsel then added that he was suggesting to the jury "that Michael Huggan is referring to Mr. Stephens when he is giving his evidence". As I have discussed, this was the Crown's position, but it was not Mr. Huggan's evidence. However, even if some jurors came away expecting Mr. Huggan to affirmatively identify the second shooter as Mr. Stephens, they would have been disabused of this mistaken belief once Mr. Huggan testified and it became clear that he was not purporting to make any such identification.
39Finally, I am not persuaded that Crown counsel's jigsaw puzzle analogy required any corrective instruction. It was not dissimilar to the analogies often used by trial judges when explaining that the trial process is like watching a picture being painted, or a jigsaw puzzle being assembled. In my view, Crown counsel's further suggestion that a jigsaw puzzle could show a recognizable picture even if a few pieces were missing did not water down the criminal standard of proof. Jurors are routinely told that "the evidence does not have to answer every question", and that the Crown is not required to prove anything to a level of absolute certainty: see David Watt, Watt's Manual of Criminal Jury Instructions 2026 ed. (Toronto: Thomson Reuters, 2026), at, Final 2-A; Final 13.
40In any event, in his opening instructions the trial judge provided the jury with a correct explanation of the criminal burden and standard of proof, and he did so again in even greater detail in his final instructions at the end of trial. No issue is taken on appeal with the adequacy and correctness of these instructions. In my view, there is no realistic prospect that the Crown's jigsaw puzzle analogy in its opening would have left the jury confused about the standard of proof required in a criminal case.
41I would therefore not give effect to either of these two related grounds of appeal.
2. Grounds arising from the directed verdict ruling
42Mr. Stephens's second ground of appeal flows from the trial judge's decision to direct acquittals on most of the charges against Mr. Stephens, but not on Counts 3 and 4, the two counts of aggravated assault. He argues that the trial judge should have directed acquittals on these charges as well.
43As I have discussed, the basis of the trial judge's ruling was his conclusion that the Crown's evidence did not reasonably support a finding that Mr. Stephens had been armed with a gun on the night of the shooting. This led the trial judge to direct acquittals on five charges that all required proof that Mr. Stephens had been in possession of a firearm that night.3
44It was common ground that the two aggravated assault charges, although not particularized to specify assaults committed with a firearm, were to be understood as relating to the shootings of Mr. Savalanpour (Count 3) and of the five bystanders (Count 4). If it could not be proved that Mr. Stephens was armed with a firearm, he could not be found guilty of committing either aggravated assault as the principal. Essentially, Mr. Stephens's argument on appeal is that the trial judge should have also found that Mr. Stephens could not reasonably be found guilty of these assaults as a secondary party, because the evidence did not support the conclusion that he knew or ought to have known that there would be a shooting.
45The flaw in this argument, which the trial judge correctly identified, is that the Crown did not have to prove that a reasonable person in Mr. Stephens's position should have foreseen that any of the victims would be shot. Rather, it was enough for the Crown to prove (i) that Mr. Stephens was a secondary party to either or both of the assaults committed by the shooter (or shooters); and (ii) that there was an objectively foreseeable risk that the assault victims would suffer bodily harm: see R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at para. 22. The Crown did not have to prove that it was objectively foreseeable to Mr. Stephens that the principal would commit the assaults by shooting the victims: see R. v. Vang (1999), 132 C.C.C. (3d) 32 (Ont. C.A.) at para. 18; R. v. Gong, 2023 ONCA 230, 425 C.C.C. (3d) 122, at para. 43. Equally, the Crown did not have to prove that it was objectively foreseeable that any of the victims would suffer injuries that were severe enough to elevate the assaults to aggravated assaults.
46The Crown had two potentially available legal routes for establishing Mr. Stephens's liability as a secondary party for the two charged assaults. On Count 3, the charge relating to Mr. Savalanpour, there was evidence from which the jury could reasonably find that the men in Group 2 had come to St. Catharines and assembled on St. Paul Street in order to have some sort of violent confrontation with Mr. Savalanpour, during which it was objectively foreseeable that Mr. Savalanpour might suffer bodily harm. If the Crown also proved that Mr. Stephens had done something for the purpose of aiding or abetting an assault on Mr. Savalanpour, this would make him a party under ss. 21(1)(b) or (c) of the Criminal Code, R.S.C. 1985, c. C-46. The Crown did not have to prove that it was objectively foreseeable either that the assault would take the form of a shooting, or that Mr. Savalanpour would suffer injuries more severe than bodily harm.
47On the second aggravated assault charge, Count 4, relating to the five bystanders, the analysis is somewhat different. The Crown could establish Mr. Stephens's liability as a secondary party via s. 21(2) of the Criminal Code by proving that he and the other Group 2 members had formed a common intention to carry out an unlawful purpose – for instance, committing a group assault on Mr. Savalanpour – and that it was objectively foreseeable that someone in the group, while carrying out this common purpose, would assault a different person in a manner that caused that person bodily harm. Again, the Crown did not have to prove that Mr. Stephens should have foreseen this latter assault being committed with a gun, or that it was objectively foreseeable that the victim would be hurt badly enough to elevate the assault to aggravated assault.
48I see no error in the trial judge's conclusion that it was "an available reasonable inference" that there was "a common intention by Group 2 to seek out and assault Savalanpour", and his further conclusion that Mr. Stephens had "aided in the actions of his associates". I do not agree with Mr. Stephens that these conclusions were "rank speculation".
49Determining the reasonableness of a circumstantial inference requires an assessment of all of the available evidence. I agree that the mere presence of the men in Group 2 outside the Karma Nightclub, on its own, did not strongly support the inference that they were waiting for Mr. Savalanpour and intending violence. They were part of a large crowd on the sidewalk, and most of the other people present were presumably not waiting for Mr. Savalanpour.
50However, this evidence did not stand alone. To list some of the other relevant evidence: (i) it was an agreed fact that Mr. Stephens had driven to St. Catharines from Toronto in the early morning hours, after a series of phone calls with Mr. Wilson, Mr. Hypolite, and another unidentified person; (ii) it was a further agreed fact that Mr. Savalanpour had some sort of connection with at least one of the Group 2 members, Mr. Myers; (iii) it was open to the jury to infer from the second shooter's location that he was one of the men from Group 2; (iv) the video evidence reasonably supported the inference that Mr. Savalanpour had been acting purposefully when he came out of the nightclub, headed towards the Group 2 men, and opened fire, suggesting both that he had known or expected their presence, and that he had some animus towards at least one of them; (v) the speed with which the second shooter returned fire supported the inference that this man, at least, had been expecting violence.
51In my view, on the evidence as a whole it was open to the jury to draw the circumstantial inference that Mr. Savalanpour and the men in Group 2 were enemies, and that Mr. Stephens and his companions had travelled to St. Catharines and waited for Mr. Savalanpour outside the nightclub in furtherance of a common purpose to have a violent confrontation with him. It was also open to the jury to conclude that Mr. Stephens had intentionally aided this common purpose (for instance, by driving Mr. Wilson to St. Catharines).
52Whether or not Mr. Stephens ought to have foreseen that there would be a shootout, it was objectively foreseeable that any sort of violent confrontation with Mr. Savalanpour might lead to him suffering bodily harm. The jury could also find that it was objectively foreseeable that Mr. Savalanpour's friends or some of the bystanders might become involved in the altercation and also suffer bodily harm. It was accordingly open to the jury to find that Mr. Stephens was a secondary party to either or both of the charged assaults, even if he did not personally have a gun, and even if he had not known or ought to have known that guns would be used. The trial judge was thus correct to find that Counts 3 and 4 should be left with the jury.
3. The trial judge's refusal to charge the jury on self defence
53Mr. Stephens's third ground of appeal is that the trial judge erred by refusing to leave self defence with the jury. Some explanation is required to put this argument in context.
a. The trial judge's ruling
54As I have already discussed, at the close of the Crown's case the trial judge directed acquittals on the five firearms-related charges against Mr. Stephens, because he was not satisfied that the evidence presented up to that point in the trial reasonably permitted the jury to conclude that Mr. Stephens had used a firearm during the shooting. Since the Crown had previously withdrawn a charge of attempted murder in relation to Mr. Savalanpour, this left only the two aggravated assault charges, Counts 3 and 4.
55Mr. Stephens then testified in his own defence. During his testimony he admitted that he had owned a handgun at the relevant time – the .32 calibre revolver the police seized from his girlfriend six months after the shooting – although he denied having had this gun with him on the night of the shooting. The trial judge held that Mr. Stephens's admission to owning a gun opened the door to the jury possibly finding him to be one of the shooters.
56This latter ruling enabled the Crown to go to the jury with its original theory that Mr. Stephens was the second shooter – that is, the man who Mr. Huggan had seen firing "wildly" behind himself while running away. The forensic evidence showed that there had been at least two shooters, both firing 9-millimetre pistols, and it was an agreed fact that one of these shooters was Mr. Savalanpour. This evidence did not rule out the possibility that there might have been additional shooters, but there was no affirmative evidence of this.
57During the pre-charge conference, Mr. Stephens argued that the jury should be instructed that the Crown had to prove that the second shooter, who on Mr. Huggan's evidence had only fired his gun after Mr. Savalanpour opened fire, had not been acting in lawful self defence. The Crown disagreed. The trial judge ruled that he would not leave self defence with the jury, and later gave brief oral reasons in which he said he would adopt the Crown's written submissions as his reasons.
58The trial judge proceeded to instruct the jury that it could find Mr. Stephens guilty of aggravated assault either as a principal or as a secondary party, but told the jury that there was "no direct evidence whatsoever that [Mr. Stephens] was identified as the shooter or had possession of the firearm at the relevant time of the shooting". He cautioned the jury further:
When you apply the circumstantial evidence rule, you will want to be very cautious that the only reasonable or rational inference to be drawn from the whole of the evidence is that the accused was the principal offender. In other words, the individual who is actually Shooter Number 2. Recall my instructions about speculation and drawing improper inferences.
b. Analysis
59As noted, the trial judge gave brief oral reasons for his self-defence ruling, in which he stated that he was adopting the Crown's written submissions as his reasons. The Crown's first argument against leaving self defence in this case was based on this court's R. v. Woodcock, 2015 ONCA 535, 336 O.A.C. 322, which the trial judge found to be "on all fours" with Mr. Stephens's case.
60There are obvious parallels between this case and Woodcock, in that both involved shootouts in crowded public areas. However, there are also some juristically important differences between the two cases.
61In Woodcock, the accused was involved in a shootout on Yonge Street in Toronto that seemed to have started after the group he was with encountered the other shooter and his friends by chance, prompting an exchange of gunfire between the two groups. Mr. Woodcock was convicted of manslaughter and multiple counts of aggravated assault on the basis that he had either personally fired his gun or, alternatively, had given it to another person "with the intent and for the purpose of having [that person] fire the gun": R. v. Woodcock, 2010 ONSC 3752, at para. 6.
62On either of these scenarios, the viability of Mr. Woodcock's self defence claim required him to have done whatever he did – firing his gun, or handing it to the shooter – for a subjective defensive purpose. This court upheld the trial judge's finding that self defence had no air of reality because the jury "would have to disbelieve [Mr. Woodcock's] evidence that he did not have a gun, disbelieve his evidence about his own state of mind and draw inferences that he had a different state of mind": Woodcock, at para. 28.
63The situation here would be analogous to that in Woodcock if the jury accepted the Crown's theory that Mr. Stephens was the second shooter but, as the trial judge recognized, this theory had very little evidential support.
64If the jury did not find that Mr. Stephens was the second shooter, the two cases diverged. Unlike the situation in Woodcock, the Crown's case on secondary party liability did not turn on anything Mr. Stephens was alleged to have done after the shootout started. Rather, it hinged on the Crown proving that he was part of a group that had the common purpose of assaulting Mr. Savalanpour, and that it was objectively foreseeable that a member of the group, while carrying out this common purpose, might unlawfully inflict bodily harm on Mr. Savalanpour and/or some other person. The jury could find Mr. Stephens guilty as a secondary party without rejecting his evidence that he did not have a gun and did not fire any shots himself.
65Mr. Stephens could only be found guilty as a secondary party if the second shooter had committed a culpable act when he fired his gun. If the possibility that the second shooter had fired in self defence had an air of reality, Mr. Stephens was entitled to have this defence left with the jury. However, unlike the situation in Woodcock, the proper focus would have been on the second shooter's subjective purpose and the reasonableness of his actions, not on Mr. Stephens's own state of mind.
66Accordingly, Woodcock was not dispositive of the question of whether self defence had an air of reality on the different facts of this case. However, the Crown's alternative argument, which the trial judge also adopted, in my view provided a solid foundation for his decision not to leave self defence with the jury.
67The s. 34(1) defence has three essential elements, at least one of which the Crown must disprove beyond a reasonable doubt: see R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 37. Since Mr. Huggan described Mr. Savalanpour as having fired the first shot, the jury could have found that the first element in s. 34(1)(a) – the requirement that the second shooter have reasonably believed that force was being used against him – had not been disproved.
68However, it was open to the trial judge to conclude that there was no air of reality to the second and third elements of the defence – namely, the requirements that the second shooter have acted for a subjective defensive purpose (s. 34(1)(b); and that his use of force have been reasonable in the circumstances, having regard to the factors in s. 34(2) (s. 34(1)(c))).
69Importantly, if the jurors did not find that Mr. Stephens was himself the second shooter, they could only find him liable as a secondary party if they were satisfied beyond a reasonable doubt that he and the second shooter had both been waiting outside the nightclub with the common purpose of violently confronting Mr. Savalanpour. This finding would have weighed heavily against any claim that the second shooter, who had come armed with a loaded firearm, had truly been acting for a subjective defensive purpose when he fired his gun, as required by s. 34(1)(b). It would also have weighed heavily against the conclusion that the second shooter's use of potentially deadly force was reasonable: see s. 34(2)(c), which requires consideration of "the person's role in the incident".
70More generally, it was open to the trial judge to find that there was no air of reality to the suggestion that the second shooter's use of force was reasonable in the circumstances. On Mr. Huggan's evidence, which the defence did not challenge, the second shooter had not made any effort to avoid hitting innocent bystanders, but had fired blindly backwards while running away, spraying bullets indiscriminately into the surrounding crowd and apparently hitting at least four bystanders, who were all standing some distance east of Mr. Savalanpour and appear to have been out of his line of fire. It was open to the trial judge to find as he did, by adopting the words in the trial Crowns' factum, that the second shooter's actions "wildly depart[ed] from society norms and standards of reasonableness" to such an extent that no reasonable jury could find that the Crown had failed to disprove the third essential element of self defence.
71I am accordingly satisfied that the trial judge did not err by exercising his gatekeeper role and declining to leave self defence with the jury: R. v. Pappas, 2013 SCC 56, [2013] 3 SCR 452, at para. 26.
C. Disposition
72For these reasons, I would dismiss the appeal.
Released: June 8, 2026 "B.W.M."
"J. Dawe J.A."
"I agree. B.W. Miller J.A."
"I agree. D.A. Wilson J.A."
Footnotes
- While it is unusual for a single count to name multiple victims, Mr. Stephens does not take issue with how this charge was framed.
- Mr. Stephens had also appealed his sentence, but has abandoned his sentence appeal.
- Specifically, acquittals were entered on Count 2 (discharge firearm with intent); Count 5 (use firearm to commit an indictable offence); Count 6 (reckless discharge of a firearm); Count 7 (point firearm); and Count 8 (unlicensed possession of a restricted firearm). The Crown had previously sought and obtained leave to withdraw Count 1, which had charged Mr. Stephens with attempted murder with a firearm in relation to Mr. Savalanpour.