Court of Appeal for Ontario
Date: January 18, 2017 Docket: C55487 Judges: Watt, Lauwers and Miller JJ.A.
Between
Her Majesty the Queen Respondent
and
Damion Sinclair Appellant
Counsel:
- Timothy E. Breen, for the appellant
- Andreea Baiasu, for the respondent
Heard: April 15, 2016
On appeal from: The conviction entered by Justice Alfred J. O'Marra of the Superior Court of Justice, sitting with a jury, on December 9, 2010 and the sentence imposed on December 23, 2010, with reasons reported at 2010 ONSC 7256.
Watt J.A.:
Introduction
[1] An afternoon in early September. Four people in a bus shelter. Waiting for a bus. A grandmother. Her niece. And two grandchildren.
[2] A man walked up to the bus shelter. A young man. About 18. Damion Sinclair. He stood outside the shelter, leaning against it.
[3] Another man came along. A young man. About 18. Stephen Barton.
[4] Stephen Barton approached Damion Sinclair. Their meeting was brief. Damion Sinclair shot Stephen Barton. Once. In the chest. Through the heart.
[5] Damion Sinclair said he shot Stephen Barton in self-defence. The jury at Sinclair's trial concluded otherwise. Found him guilty of second degree murder. The judge at the trial decided that Sinclair should serve at least 14 years of his sentence of imprisonment for life before becoming eligible for consideration for release on parole.
[6] Damion Sinclair appeals. He says the judge made errors in instructing the jury about self-defence and imposed a period of parole ineligibility in excess of what was appropriate.
[7] As I will explain, I would dismiss both appeals.
The Background Facts
[8] The nature of the grounds of appeal advanced on the appeal from conviction render a forced march through the minutiae of the evidence unnecessary. Some review is essential, however, in order to understand the grounds of appeal advanced.
[9] At trial and on appeal it was and remains common ground that there was an air of reality to Sinclair's assertion of self-defence. The only applicable basis of self-defence was former s. 34(2) of the Criminal Code, which provided:
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causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and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.
The Principals and their History
[10] Damion Sinclair lived alone in the Jane Street and Weston Road area. He received financial assistance from the Children's Aid Society (CAS). He had a girlfriend, Justine Brown, who lived at York Square. Sinclair had a youth record and was a drug trafficker.
[11] Stephen Barton lived in an apartment at York Square with his mother. Barton was a member of the Eglinton West Crips gang and hung around with other members of the gang by the entrance to York Square.
[12] Earlier in the year in which he shot Stephen Barton to death, Sinclair had been involved in an altercation with several members of the Eglinton West Crips at the Hamilton Wentworth Detention Centre. Stephen Barton was not among those embroiled in the fracas.
[13] Prior to the day of the shooting, Sinclair and Barton had not been involved in any contretemps. Neither had displayed or voiced any animosity towards the other.
The Initial Confrontation
[14] Around 2:20 p.m. on the day of the shooting, Barton and some of his friends left the apartment building in York Square and joined another group in front of a convenience store near the entrance to York Square. About 15 minutes later, Sinclair passed by the group coming from the apartment building.
[15] As Damion Sinclair passed by, one of Stephen Barton's friends made a comment to Sinclair which he said he perceived as a threat. Sinclair offered no response, except to put his hand in his pocket indicating that he was armed. After seeing Sinclair make this gesture, Stephen Barton became angry with Damion Sinclair and jumped up. Barton was heard to say "what's wrong with the nigga. The nigga is dead".
The Interlude
[16] Within seconds of making his comment, Stephen Barton returned to the apartment building where he lived. A minute later, several of his friends followed. Sinclair said that some of Barton's friends had at first started following him after the initial confrontation but then turned back towards the building.
[17] About a minute after Barton's friends returned to the building, Damion Sinclair walked by the main entrance and then around the perimeter of the building. He stayed close to the outside walls and appeared to look inside as he passed by the several entrances. Sinclair had a black object in his right hand. At trial, he said the object was not a gun, but he offered no explanation about its nature.
[18] Damion Sinclair said that he was scared as he walked around the building. He was afraid that he would be shot. He could have run from the area or taken a taxi elsewhere. He could have gone into a store and sought assistance. He did not call the police because of his prior experience with them.
[19] Damion Sinclair had a gun in his left back pocket. He denied that he was looking for the group because he was angry and wanted to confront them for having disrespected him.
The Bus Stop
[20] Damion Sinclair left the perimeter of York Square. He walked west on Eglinton to a bus shelter about 370 feet away from the western edge of York Square. He looked behind him repeatedly, back towards the apartment building where he thought Barton had gone to get a gun. The distance between York Square and the bus shelter can be walked at a normal pace in about 1 minute and 15 seconds.
[21] Damion Sinclair stopped at the bus shelter. At first, he leaned against the east side of the shelter, his right shoulder against the glass. He looked both east and west along Eglinton Avenue. He had his hands in his pants pocket, his gun too.
[22] About a minute after Sinclair had arrived at the bus shelter, Stephen Barton came out of the apartment building. He began walking west towards the bus shelter. And towards Damion Sinclair.
[23] Damion Sinclair was not alone at the bus shelter. Inside, either standing or sitting, were a grandmother, her two small grandchildren and her niece.
The Shooting
[24] Accounts about the circumstances of the shooting, including the events that immediately preceded it, vary.
[25] A passerby saw Barton walk down the hill from the apartment building to the bus shelter, and stop to speak to Damion Sinclair who was leaning against the shelter. Barton spoke in a normal tone of voice. The two men faced each other. The passerby, who did not speak or understand the language in which Barton and Sinclair were speaking, could not say what the men were talking about.
[26] Neither adult occupant of the bus shelter saw where Barton came from, but both saw him outside the shelter. Their accounts differ somewhat about who approached whom. Neither remembered Barton grabbing Sinclair by the shoulder, as Sinclair claimed. Neither saw Barton with a gun or anything else in his hands before Sinclair shot him. One witness saw Sinclair turn around, take three steps to face Barton, point a gun at Barton's chest and shoot him. The other witness recounted Barton having approached Sinclair before he was shot.
[27] Damion Sinclair recalled that he had been at the bus shelter about a minute before he saw Barton walking towards him. Sinclair became more fearful as Barton looked right at him, his right hand in his pocket. Sinclair thought about running, but decided against it.
[28] Damion Sinclair explained that Barton walked about two feet past him. Sinclair thought he was safe. But Barton suddenly turned back, grabbed Sinclair's shoulder with his left hand and put his right hand in his pocket as if he (Barton) was trying to pull something out of his pocket. Thinking he had no option, Damion Sinclair pulled his gun out of his own pocket. He fired at Barton.
[29] Damion Sinclair ran from the bus shelter. He got rid of his sweater and hat so that he would not be easily recognizable by Stephen Barton's friends.
The After-the-Fact Conduct
[30] Damion Sinclair fled on foot from the bus shelter. He went to another apartment complex about 20 minutes away. There, he changed his clothing again. He said he changed because there was a tear in the shirt he had on. Later, he disposed of the spent cartridge from the gun and returned the weapon to its owner.
[31] Damion Sinclair stayed overnight at the gun owner's home. He was arrested there the next morning. The gun, fully loaded, was recovered by police from under a mattress.
The Cause of Death
[32] Stephen Barton died of a gunshot wound to his left chest. The bullet passed through his chest and exited out his back. The weapon used was the .38 calibre handgun fired by Sinclair and recovered the next day. Death would have been quite rapid for the deceased, from a matter of seconds to minutes. The gun was fired from an indeterminate distance, as close as several centimeters from the deceased.
The Appeal from Conviction
[33] On the appeal from conviction, Damion Sinclair (the appellant) advances three grounds of appeal. Each asserts a deficiency in the trial judge's final instruction on self-defence under former s. 34(2). I would paraphrase the grounds of appeal as errors in:
i. limiting the availability of self-defence to an actual assault, rather than including assaults that are reasonably apprehended;
ii. instructing the jury on the relevance of the failure to retreat to the accused's entitlement to raise self-defence; and
iii. failing to give an appropriate Baxter instruction in connection with the third element of self-defence under former s. 34(2).
Ground #1: Limiting Self-Defence to Responses to an Actual Assault
[34] The first ground of appeal focuses on the conduct of the deceased that precipitated the appellant's response. To be more specific, we are concerned with the words "unlawfully assaulted" in the opening portion of former s. 34(2).
[35] It is helpful to begin with a brief reminder about the evidence upon which the applicant relies to found his claim that he was "unlawfully assaulted" and thus justify his response as necessary in self-defence.
The Confrontation
[36] The appellant testified that Barton walked by him as he stood beside the bus shelter. Once he had passed by, Barton turned around and put his hand on the appellant's shoulder. Barton had his hand in his other pocket. The appellant never saw a gun in Barton's hand. Fearing for his life, the appellant took his gun out of his pocket and fired, without aiming, at Barton. He then ran away.
[37] No one else described any gesture or physical contact by Barton towards the appellant. The women in the bus shelter described the men facing each other and the appellant pointing his gun at, then shooting Barton in the chest.
The Addresses of Counsel
[38] At trial, Crown counsel (not Ms. Baiasu) argued that the appellant's claim that Barton grabbed him by the shoulder, and thereby unlawfully assaulted him, was fabricated. No such assault took place. The eyewitnesses in the bus shelter were well-positioned to see it. They saw nothing of the kind because it never happened.
[39] Trial counsel for the appellant (not Mr. Breen) staked the defence claim of self-defence on the appellant's testimony. The appellant responded to Barton's unlawful assault when he grabbed the appellant by the shoulder. Trial counsel did not suggest that, if the jury rejected the appellant's evidence that he was actually assaulted by Barton, self-defence remained available because the appellant reasonably apprehended an imminent assault from the manner in which Barton approached him.
The Pre-Charge Conference
[40] At trial, the parties were of one mind about the only basis of self-defence that should be left with the jury – former s. 34(2). No one suggested that anything other than Barton's grabbing of the appellant's shoulder should serve as the "unlawfully assaulted" predicate to ground self-defence under s. 34(2).
[41] The trial judge provided a draft of his proposed instructions for counsel to review in advance of their delivery. He afforded counsel an equivalent opportunity for objection after delivery. Trial counsel for the appellant did not object to this, or any aspect, of the charge on self-defence.
The Charge to the Jury
[42] The trial judge explained to the jury that self-defence under what was then s. 34(2) consisted of three elements. After setting out the essential elements in question form, the trial judge described to the jurors the nature of their task. He said:
In assessing all three parts or components of self-defence, you are being asked to determine how Mr. Sinclair perceived the relevant facts and whether that perception was reasonable. Your determinations are to be based on both a subjective evaluation, that is, what did Mr. Sinclair honestly believe, and an objective evaluation, that is, what would an ordinary person in the same circumstances reasonably believe?
[43] The trial judge formulated the first question as:
Was Damion Sinclair unlawfully assaulted by Stephen Barton?
The judge then explained:
So Part I and the question relating to it. Was Damion Sinclair unlawfully assaulted by Stephen Barton? An unlawful assault is an intentional application of force, directly or indirectly, by any means, in this instance to Damian Sinclair's body without his consent. An unlawful assault may also consist of threatening words or actions that would cause a reasonable person in the defendant's circumstances to think that he is about to be physically harmed unless he does something to prevent it.
The issue is whether Damion Sinclair reasonably believed, in the circumstances that he knew them to be, that he was being unlawfully assaulted in the seconds leading up to the killing. If you decide that he was not being assaulted, then self-defence is not available to him. However, if you have a reasonable doubt about whether he was being unlawfully assaulted right before the killing. You would go to the second part of self-defence.
The Arguments on Appeal
[44] The appellant begins with a reminder about the position advanced by the Crown at trial. The trial Crown contended that the appellant's claim that the deceased grabbed his shoulder was fabricated. She urged the jury to reject this evidence and, with it, the justification of self-defence. This juxtaposition, for all practical purposes, took apprehended assault off the table as a gateway to former s. 34(2).
[45] The appellant says that trial counsel did not rest the claim of self-defence exclusively on an actual assault. What happened first, the menacing advancement and reaching into the pants pocket, put apprehended assault in play. And thus required its inclusion in the final instructions.
[46] The brief references to apprehended assault in the final instructions were inadequate to ensure a proper evaluation of this aspect of the justification. The dominant focus on the actual assault deflected a reasoned consideration of apprehended assault and significantly prejudiced the appellant's defence.
[47] Not so, says the respondent. The charge, read as a whole, conveyed and ensured the jury's proper understanding of the unlawful assault constituent of former s. 34(2) in the circumstances of this case.
[48] The respondent contends that the evidence adduced at trial affords no basis for a distinction between an actual and an apprehended assault to which the appellant responded. The appellant said he was assaulted. His evidence was that Barton grabbed him by the shoulder as soon as he (Barton) turned around. There was no mistake about it. His response was not to something that he feared would or might happen, but rather to something that actually did.
[49] Further, the respondent continues, trial counsel for the appellant advanced no argument to the jury and made no submissions to the trial judge about apprehended assault as a gateway to self-defence. Not as a free-standing basis for the justification. And not in combination with actual assault. In addition, throughout the charge, the trial judge emphasized the subjective component of self-defence, thus ensuring the jury appreciated the importance of the appellant's state of mind along with the objective reality.
The Governing Principles
[50] The former s. 34(2) created a justification for the use of force that caused the death of or grievous bodily harm to another person, provided the responsive force fell within the limits imposed by subsection.
[51] For ease of reference, former s. 34(2) provided as follows:
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.
[52] At first light, the former justification contains several elements. Some have to do with conduct. Others with purpose. Still others with consequences. And what remains with the state of mind of the person who uses responsive force. For discussion purposes, we can separate out the elements of self-defence under former s. 34(2) as:
i. an unlawful assault;
ii. a reasonable apprehension of a risk of death or grievous bodily harm from the assault or its pursuit; and
iii. a reasonable belief that it is not possible to preserve oneself from harm except by killing or seriously injuring the adversary.
See R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 93; R. v. Pétel, [1994] 1 S.C.R. 3, at p. 12.
[53] On its face, the phrase "unlawfully assaulted" in former s. 34(2) would appear to require that the person asserting the justification be the victim of an actual assault. In other words, the victim of a direct or indirect application of force without his or her consent. This is an assault as defined in s. 265(1)(a) of the Criminal Code. But this is not the only definition of assault in the offence-defining section. Assault may also be committed, for example, where one person attempts or threatens, by an act or gesture, to apply force to another person, if the threatener has, or causes the other person to believe on reasonable grounds that she or he has, present ability to carry out his or her purpose. And to limit the justification to an actual assault would not take cognizance of the doctrine of mistake of fact.
[54] The authorities have made it clear that former s. 34(2) may be engaged in circumstances in which the person who invokes the justification – the accused – has not actually been assaulted. In connection with this element of the justification, the issue is not whether the accused was actually unlawfully assaulted, but rather whether the accused reasonably believed that he was being unlawfully assaulted: Pétel, at p. 13; Cinous, at para. 107. See also R. v. Currie (2002), 166 C.C.C. (3d) 190 (Ont. C.A.), leave to appeal refused, [2003] S.C.C.A. No. 410, at para. 43; R. v. Proulx (1998), 127 C.C.C. (3d) 511 (B.C.C.A.), at paras. 25, 27.
[55] The imminence of an attack, real or apprehended, is not a formal requirement of a claim of self-defence under former s. 34(2). However, immediacy is a relevant consideration in connection with apprehended assault. Common sense compels the conclusion, especially when consideration is given to the words, "repelling the assault", that the apprehended attack was happening or about to happen: Currie, at paras. 50-51; Cinous, at para. 124.
[56] The air of reality standard applies to each constituent element of self-defence under former s. 34(2): Cinous, at para. 93. The element expressed in the statutory language "unlawfully assaulted" is no exception. This element, like the others, has not only a subjective component, but also an objective ingredient. There must be evidence of each before the obligation to instruct on the justification arises. With respect to each element, the proper approach involves two inquiries. The first inquiry is about the subjective perceptions of the accused. The second asks whether those perceptions were objectively reasonable in the circumstances: Cinous, para. 94.
[57] The air of reality standard determines whether a trial judge is required to instruct the jury on the justification enacted by former s. 34(2). Where the justification is grounded on a mistaken belief by an accused on reasonable grounds that he was assaulted, the obligation to instruct is co-extensive with an evidentiary foundation for both the subjective and objective component of this element. The absence of either extinguishes the obligation to instruct on the justification: Proulx, at para. 33; Cinous, at paras. 124-25. See also R. v. Stewart, 2014 ONCA 70, 306 C.C.C. (3d) 269, at paras. 30-31.
[58] A final point. Where the claim of self-defence rests on an assertion of actual assault, and a distinction between what an accused said happened and what she reasonably believed happened or was about to happen cannot be fairly said to arise from the evidence, a trial judge is under no obligation to instruct the jury on the basis of apprehended assault: Stewart, at paras. 26-31; R. v. Doucette, 2015 ONCA 583, 328 C.C.C. (3d) 211, at paras. 25-26; R. v. Rochon (2003), 173 C.C.C. (3d) 321 (Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 229, [2004] S.C.C.A. No. 230, at paras. 37-38; R. v. Grandin, 2001 BCCA 340, 154 C.C.C. (3d) 408, at para. 64.
The Principles Applied
[59] Several reasons persuade me that we should not give effect to this claim of non-direction amounting to misdirection.
[60] To begin, the obligation to instruct on a defence, justification or excuse is not engaged by its mere assertion or an unadorned request. As we have seen, the specific claim advanced here, like others, requires an evidentiary foundation, an air of reality as the controlling authorities describe it. Non-direction, without more, is not misdirection, much less fatal misdirection. For non-direction on a defence, justification or excuse to amount to misdirection, there must be an evidentiary foundation, an air of reality, to the submission. And that is where the claim of non-direction amounting to misdirection founders in this case.
[61] First, as is often the case, the evidentiary support for self-defence was the testimony of the appellant. The conduct to which he said that he responded was not an attack that he reasonably believed was about to occur. Rather it was one that did occur – Barton grabbed him by the shoulder. On this evidence, there was no realistic basis for a suggestion that although Barton may not in fact have grabbed him by the shoulder, the appellant reasonably believed that he was about to be attacked by an armed assailant. To distinguish between what the appellant reasonably believed and what he said happened was unwarranted on the evidence. It follows, in my respectful view, that there was no air of reality to support the proposed instruction and thus no obligation to give it.
[62] Second, trial counsel for the appellant did not suggest that the appellant's responsive force originated in his reasonably held but honestly mistaken belief that he was about to be attacked by Barton. Not in her closing address. Not in her submissions about charge content. And not in her complaints about legal omissions in the charge. While not fatal, the failure to advance this basis for the defence and to seek its inclusion or complain about its omission are factors worthy of consideration here.
[63] Third, what occurred here and precipitated the appellant's response was, in reality, a single event. It was not something that could or should be subjected to a metaphysical, freeze-frame type of analysis to colour it otherwise than as it was. To do so risks sacrifice of substance on the altar of form. Jury confusion, not jury education.
[64] Fourth, this is not a case in which the trial judge failed to apprise the jury about the relevance of the appellant's state of mind to the constituent elements of self-defence. The trial judge emphasized at the beginning, at the end, and throughout his instructions on self-defence the importance of the appellant's state of mind. On at least two occasions, the trial judge specifically told the jury that the issue was whether the appellant reasonably believed, in the circumstances as he knew them to be, that he was being unlawfully assaulted in the seconds leading up to the killing.
[65] Finally, whether the appellant reasonably but mistakenly believed that an assault was about to occur was not a live issue at trial. The appellant's evidence was that Barton grabbed him by the shoulder. This is not a case about equivocal conduct. The only conduct that could have footed such a belief was the selfsame conduct that constituted an actual assault. If the evidence did not raise a reasonable doubt that the appellant was defending himself against Barton's actual assault, the record was barren of any evidence to support a mistaken belief by the appellant that he was being assaulted.
[66] As I have said, I would not give effect to this ground of appeal.
Ground #2: The Role of Failure to Retreat
[67] The second ground of appeal alleges a further error in the trial judge's instructions on self-defence: a failure to properly instruct the jury on the relevance of evidence of failure to retreat in their assessment of the applicability of the defence.
[68] To frame the discussion that assesses the viability of this claim of error, it is helpful to recall some features of the evidence, the position of the parties, and the instructions given to the jury.
The Essential Background
[69] Several minutes elapsed between the first altercation at the entrance to York Square where Barton insulted the appellant – "what's wrong with the nigga. This nigga is dead" – and the shooting at the bus shelter. During this interlude:
- Barton and his friends re-entered York Square.
- The appellant walked around the outside of the apartment building, carrying a black object in his right hand and looking in at the entrances.
- The appellant was looking for Barton and his friends, armed with a handgun, a fact that he had communicated to them at their first meeting.
- The appellant walked from York Square, a distance of 370 feet to the bus shelter.
- The appellant had a clear view of Barton walking from York Square to the bus shelter and acknowledged that he could have gone to several different places or left the area.
- The appellant thought Barton was armed.
The Position of the Parties at Trial
[70] In her closing address, trial counsel for the appellant did not specifically refer to the issue of retreat, or to the significance of a failure to retreat, on the availability of self-defence under former s. 34(2). She did point out, however, several circumstances that she said indicated that the appellant had nowhere to go.
[71] The trial Crown submitted that the appellant had ample opportunity to get away, a submission she illustrated by several examples. The trial Crown also asked the trial judge to include an instruction that the appellant had a duty to retreat from the moment his interaction with Barton began and again when the deceased turned towards him at the bus shelter.
The Charge to the Jury
[72] The trial judge separated out the essential components of self-defence under former s. 34(2) and converted each to a question for the jurors to answer. For each question, the trial judge explained the governing legal principles and summarized the evidence relevant for jurors to consider in reaching their conclusion on the issue.
[73] The trial judge discussed the availability of other alternatives when he instructed the jury on the third essential element of self-defence – a reasonably grounded belief on the part of the appellant that he could not otherwise preserve himself from death or grievous bodily harm than by killing or seriously injuring Barton.
[74] In concluding his instructions on self-defence, in connection with the requirement that the Crown prove beyond a reasonable doubt that the appellant unlawfully caused the death of the deceased, the trial judge focused on the relevance of retreat:
The bottom line with self-defence is that the defendant has to believe honestly and on reasonable grounds that the force he uses is necessary.
While there is no obligation on the defendant to retreat, the issue of retreat, whether a defendant could retreat, may be a relevant consideration in determining whether the defendant believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm. It may be, in hindsight and reflection, that there was a realistic option to flee or leave the area. But the question is not what someone thinks in hindsight. The question is whether Mr. Sinclair believed reasonably and honestly that he had no other choice.
On the other hand, if you are satisfied beyond a reasonable doubt that Mr. Sinclair used more force than he honestly did and reasonably believed was necessary, or that he was reasonably aware that there were other options available to him than to apply deadly force, then you should reject the defence of self-defence and conclude that Mr. Sinclair committed an unlawful homicide.
[75] The trial judge did not instruct the jury that failure to retreat disentitled the appellant from relying on self-defence.
The Arguments on Appeal
[76] The appellant says that the trial judge failed to properly instruct the jury on the relevance of evidence of the opportunity and failure to retreat.
[77] According to the appellant, he was under no legal obligation to retreat as a condition precedent to his reliance on self-defence under former s. 34(2). Failure to retreat, he accepts, may be relevant to two constituent elements of the justification afforded by former s. 34(2):
i. the appellant's subjective apprehension of death or grievous bodily harm from the assault by Barton; and
ii. the reasonableness of the appellant's belief in the necessity of killing or very seriously injuring Barton to save himself from an equivalent fate.
But the problem here arose because the trial Crown suggested that the law imposed a duty on the appellant to retreat.
[78] In this case, the appellant contends, the trial judge was required to correct the misimpression created by the Crown. This involved two steps. The first was to make it clear to the jury that although relevant to two essential elements of self-defence, a failure to retreat did not disentitle the appellant from relying on self-defence. And the second was that the relevant time at which a failure to retreat may become material was when the appellant responded to Barton's assault. But there was no realistic opportunity to retreat at this time, thus the issue of retreat or failure to do so, should have occupied no role in the jury's assessment of the claim of self-defence.
[79] The respondent accepts that former s. 34(2) contains no reference to retreat and does not require retreat in the face of unlawful assault as a condition precedent to the availability of the defence. That said, the respondent continues, the possibility or availability of retreat is relevant to the reasonableness of a claimant's apprehension of death or grievous bodily harm from the victim's assault, and of the claimant's belief about the unavailability of other bases for self-preservation.
[80] The respondent says that the trial Crown's closing address properly reflected the relevance of evidence of a failure to retreat. The trial Crown did not say that a failure to retreat precluded self-defence, or that a failure to do so at the time of the initial brouhaha outside York Square eliminated the availability of self-defence at the bus shelter.
[81] In addition, the respondent continues, the trial judge did not misdirect the jury, expressly or by necessary implication, about the relevance of retreat and of evidence of a failure to retreat in the face of a reasonable opportunity to do so.
[82] In her final address to the jury, the trial Crown submitted that the appellant's repeated failure to leave when he had ample opportunity to do so belied his claim that he was surprised by Barton's sudden turn and had to shoot as a last resort to save his own life. At no time did the trial Crown suggest that the appellant had an obligation to retreat or that his failure to do so negated his claim of self-defence.
[83] The respondent says that the trial judge's instruction to the jury expressly advised them that the appellant had no obligation to retreat. The failure to retreat was left to the jury as a relevant factor for them to consider in their assessment of self-defence. The judge explained that the relevant time for them to consider in connection with the failure to retreat was just before the fatal shot. Trial counsel for the appellant offered no objection to the manner in which the trial judge left this issue to the jury.
The Governing Principles
[84] A brief reminder about the obligation to retreat and the significance of evidence of a failure to do so when self-defence is put forward as a justification for killing another will assist in the resolution of this ground of appeal.
[85] First, former s. 34(2) does not, in express terms or by necessary implication, contain any reference to retreat. The subsection imposes no obligation on the self-defence claimant to retreat. In this respect, the former s. 34(2) differs from the former s. 35: R. v. Cain, 2011 ONCA 298, 278 C.C.C. (3d) 228, at para. 9; R. v. Abdalla, 2006 BCCA 210, 209 C.C.C. (3d) 172, at para. 25; Proulx, at para. 44. Former s. 34(2) does not differ from the common law where retreat before using force is not an independent and imperative condition of a successful plea of self-defence: R. v. Howe (1958), 100 C.L.R. 448 (H.C.A.), at pp. 462-63.
[86] Second, the possibility of retreat is relevant to the second and third elements of the justification afforded by the former s. 34(2). In other words, the possibility of retreat is a relevant item of evidence for the jury to consider in deciding whether the accused:
i. had a reasonable apprehension of death or grievous bodily harm from the victim's assaultive conduct; and
ii. had a reasonable belief that it was not otherwise possible to save him or herself from death or grievous bodily harm except by killing or seriously harming the victim.
See Cain, at para. 9; Proulx, at paras. 47-49.
[87] Third, the relevance of failure to retreat on these issues may disappear when an accused had no real opportunity to do so. The absence of any real opportunity to retreat may require an instruction that the accused's failure to do so is not relevant to the jury's assessment of the claim of self-defence: Abdalla, at para. 26.
[88] Fourth, where Crown counsel misstates the relevance of retreat, or failure to retreat, as for example by telling the jury that the accused is precluded from relying on self-defence because he had failed to retreat when the confrontation began, the trial judge would be required to give the jury a correcting instruction: Cain, at para. 11; Proulx, at para. 50; Abdalla, at para. 27.
[89] Finally, even where Crown counsel has not expressly misstated the relevance of retreat, a trial judge should consider whether a corrective instruction may be necessary to alleviate the risk that the jury may have understood the Crown to be making such an erroneous submission: Cain, at para. 11; Proulx, at para. 50.
The Principles Applied
[90] As I will explain, I would not give effect to this ground of appeal. In my respectful view, neither Crown counsel in her closing address, nor trial judge in his instructions to the jury misstated the law about retreat.
[91] I begin with the closing address of the trial Crown.
[92] First, at no point did the trial Crown suggest to the jury in her closing address that the appellant's failure to retreat disentitled him to the justification of self-defence. Nor did the trial Crown claim that the appellant's failure to retreat after the initial altercation in front of York Square disentitled him to rely on self-defence when Barton grabbed him by the shoulder at the bus shelter. Rather, the trial Crown argued that the appellant's failure to retreat earlier supported the Crown's position that the appellant was looking for a gunfight and that his claim of the need for self-defence was spurious.
[93] Second, in her closing address, the trial Crown correctly focused on the time of the appellant's response to what he alleged was an assault by Barton as the relevant time to assess his claim of self-defence. As a result, the trial Crown did not expressly or impliedly suggest that the appellant's failure to retreat after the first incident at York Square disentitled him to rely on self-defence.
[94] Third, trial counsel did not object to the closing address of the Crown or request any corrective action be taken by the trial judge. Of course the failure to object is not dispositive. However, it affords some indication that counsel who conducted the trial, heard the address and was sensitive to the issue of retreat, did not consider the Crown's references unfair or misleading.
[95] Finally, perhaps a point of lesser significance, the instructions of the trial judge, as well the address of counsel, made it clear that the jurors were to take their legal instructions from the trial judge, not from counsel.
[96] Turning next to the instructions of the trial judge. Nothing said or left unsaid constitutes misdirection or non-direction amounting to misdirection.
[97] First, the trial judge expressly told the jury that the appellant was under no obligation to retreat. This instruction ensured that the jury was not left with a mistaken view that retreat was an essential pre-condition to or an independent requirement of self-defence.
[98] Second, the trial judge correctly linked retreat to the second and third constituent elements of self-defence, and emphasized that it was not the burden of the appellant to prove that he acted in self-defence, rather it was the onus of the Crown to disprove that he did so.
[99] Third, the trial judge tied the issue of retreat to the time of the shooting. Even without an express direction that retreat did not relate to the earlier altercation at York Square, the jury would not be left in any state of doubt about the time that was relevant to the issue. In the end, the jury was not left with the impression that the appellant's failure to retreat initially sounded the death knell for self-defence.
[100] Finally, trial counsel had ample opportunity to review a draft of the trial judge's proposed instructions. She did not seek the instruction now said to amount to a fatal omission, nor complain of its absence before or after delivery.
Ground #3: The Baxter Instruction
[101] The final ground of appeal against conviction also takes issue with something not said in the instructions on self-defence. In the parlance of the criminal lawyer and jurist, the missing part was a Baxter instruction, so described because of its origin in R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.). The instruction advises the jury of the need to make an allowance for the stress of the situation in which an accused finds himself and of the need for an immediate response to that unlawful assault.
[102] To site this claim of prejudicial error in its appropriate landscape, it is helpful to recall some aspects of the events surrounding the shooting followed by a brief overview of the positions of counsel.
The Background
[103] The occupants of the bus shelter, two adults and two children, were close by the shooting. Each saw the appellant and Barton facing one another. Each adult saw the appellant point his gun at Barton's chest and shoot him. The shot was fired from a distance that could not be precisely determined. But it was not so close that it left stippling or unburned power residue around the site of the entrance wound. Neither bystander remembered seeing Barton grab the appellant by the shoulder. Neither saw Barton make any threatening gesture towards the appellant.
[104] Stephen Barton was in fact armed. After he was shot. He struggled to his feet and fired a shot towards the direction of the fleeing appellant, hitting nothing.
[105] The appellant testified that Barton walked by him as he leaned or stood by the bus shelter. Barton then suddenly turned, and grabbed the appellant by the shoulder. It was then that the appellant fired a single shot without taking aim. He then ran away.
[106] Stephen Barton died of a single shot that penetrated his heart.
The Positions at Trial
[107] Neither party sought nor complained about the failure to include Baxter direction in the charge to the jury.
The Arguments on Appeal
[108] The appellant says that the trial judge was wrong in failing to include a Baxter instruction in his charge to the jury. The instruction advises the jury of the need to make an allowance for the stress of the situation in which an accused finds himself and of the need for an immediate response to that unlawful assault.
These factors were relevant in the jury's assessment of the third essential element of self-defence, in particular, whether the force used by the appellant, based on his reasonable belief that he could not otherwise preserve himself from death or really serious bodily harm, was more than what was necessary.
[109] The respondent acknowledges that previous decisions of this court have considered it an error of law to fail to include a Baxter direction when instructing the jury on self-defence under the former s. 34(2). But, the respondent says, no case holds that, without more, the failure to provide a Baxter direction constitutes reversible error.
[110] The respondent reminds us that we are to take a functional approach when assessing the adequacy of a jury charge. We are to examine the charge as a whole to determine, despite the omission, whether it adequately equipped the jury to discharge its responsibility. The charge here was up to that task. The trial judge directed the jury to consider the essential elements of self-defence in light of the appellant's evidence of his perception of the situation that confronted him. The instructions emphasized the appellant's state of mind, his perceptions and reaction, and would have brought home to the jury that a precisely calibrated response was not required.
[111] The respondent points out that nothing said or left unsaid by the trial judge suggested that any requirement of proportionality or rough equivalence between Barton's assault and the appellant's response was essential for self-defence to avail. Absent such an instruction, the omission of a Baxter direction caused the appellant no prejudice.
The Governing Principles
[112] A consideration of the substance of and the necessity for what has become known as a Baxter instruction begins with the look at the origin of the species, the decision of this court in Baxter.
[113] Baxter was charged with three counts of attempted murder and a single count of criminal negligence causing bodily harm. He was acquitted of attempted murder, but convicted of three counts of discharging a firearm with intent to wound and of criminal negligence causing bodily harm. He raised the defence of self-defence.
[114] The trial judge instructed the jury on self-defence under former s. 34(2) of the Criminal Code, but declined to charge on former s. 34(1) or former s. 37. On appeal, Baxter complained about the adequacy of the instructions on s. 34(2) and the absence of instructions on s. 34(1) and 37. This court found the instructions on s. 34(2) adequate and a failure to instruct on ss. 34(1) and 37 not to have caused a substantial wrong or miscarriage of justice. After pointing out that the doctrine of mistake of fact applied to both ss. 34(1) and 34(2), Martin J.A. added at p. 111:
Moreover, in deciding whether the force used by the accused was more than was necessary in self-defence under both s. 34 (1) and (2), the jury must bear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety, the exact measure of necessary defensive action.
[115] The lead authority cited by Martin J.A. in Baxter was the decision of the Privy Council in Palmer v. The Queen (1971), 55 Cr. App. R. 223 (P.C.). In Palmer, the appellant contended for a general rule that a jury should be instructed that if they concluded that an accused used excessive force in self-defence, they should return a verdict of guilty of manslaughter. Their Lordships declined to adopt such a rule (despite its currency in the common law states of Australia). In determining the appeal, the Board concluded at p. 242:
There are no prescribed words which must be employed in or adopted in a summing-up. All that is needed is a clear exposition, in relation to the particular facts of the case, of the conception of necessary self-defence. If there has been no attack, then clearly there would have been no need for defence. If there has been attack so that defence is reasonably necessary, it will be recognized that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken. A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will fail only if the prosecution show beyond doubt that what the accused did was not by way of self-defence.
[116] It is worthy of notice that neither this court in Baxter, nor the Privy Council in Palmer established a bright line rule that requires inclusion of what has become known as a Baxter instruction in all cases in which former s. 34(2) is invoked for fatal or near fatal violence inflicted on others in response to an unlawful assault: see also R. v. Bogue (1976), 30 C.C.C. (2d) 403 (Ont. C.A.), at pp. 407-8. Yet subsequent authorities appear to have treated inclusion of the instruction as essential to an understanding of the role of excessive force in adjudication of a claim of self-defence: see e.g. R. v. Hebert, [1996] 2 S.C.R. 272, at para. 18; R. v. Desveaux (1986), 26 C.C.C. (3d) 88 (Ont. C.A.), at p. 92; R. v. Onigbinde, 2010 ONCA 56, 251 C.C.C. (3d) 15, at para. 27.
[117] The Baxter instruction relates to the reasonableness of an accused's belief of the necessity of killing or very seriously injuring a victim as the only means of self-preservation under former s. 34(2)(b).
[118] Despite its humble origins, a Baxter instruction seems to have achieved near-canonical status as a component of a proper jury instruction under former s. 34(2). Our court has held it to be an error in law to omit the instruction: R. v. Scotney, 2011 ONCA 251, 277 C.C.C. (3d) 186, at para. 33.
[119] Yet not every omission of a Baxter instruction is fatal to the validity of a conviction recorded without its inclusion. The authorities fail to reveal a single case in which such an omission, on its own, has been held sufficient to warrant appellate reversal. Each case depends on its own facts: The absence of a request for the instruction or an objection to its omission: The thoroughness of the judge's review of the relevant evidence: The emphasis laid on the subjective component of the excessive force element in former s. 34(2)(b): Scotney, at paras. 34-36.
The Principles Applied
[120] For several reasons, I am not persuaded that this omission warrants appellate reversal in this case.
[121] First, the prevalent current of authority resists appellate reversal on this ground alone. The industry of counsel yielded that no precedent where, standing alone, the absence of a Baxter instruction was fatal to the validity of a conviction.
[122] Second, the omission occurred in connection with an instruction on an issue that was otherwise faultless, emphasized the subjective component and recited the material aspects of the evidence relevant to an informed decision on the issue.
[123] Third, the subject-matter of the Baxter instruction, as the Privy Council observed in Palmer, is something an untutored jury is likely to consider. If there has been an attack such that self-defence is reasonably necessary, a jury is likely to recognize that a person defending himself cannot be expected to weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that, in a moment of unexpected anguish, a person attacked had only done what he or she and a reasonable person in the same circumstances honestly thought was necessary to preserve himself or herself from death or grievous bodily harm, that would be the most potent evidence that he had taken only reasonable defence action: Palmer, at p. 242.
[124] Fourth, it is worthy of reminder that the excessive force issue framed by former s. 34(2)(b) is not determined solely on the basis of subjective considerations. It involves objective considerations as well. Reasonableness depicts a range of responses, not a single right answer. This hybrid standard, coupled with not only the absence of any onus on the accused to establish the defence, but rather an obligation the Crown to disprove beyond a reasonable doubt its availability, renders the omission of little moment in the final analysis.
[125] Finally, we should not lose sight of the controverted issue that lay at the centre of this case. That issue did not involve the nature of the appellant's response. The fundamental controversy was whether Barton assaulted the appellant in the first place. In the absence of an unlawful assault, actual or reasonably apprehended, no measure of self-defence was warranted. On that threshold decision, the omitted Baxter instruction had nothing to say.
[126] I would not give effect to this ground of appeal and, accordingly, would dismiss the appeal from conviction.
The Appeal from Sentence
[127] The appellant also appeals the period of parole ineligibility – 14 years – fixed by the trial judge under s. 745.4 of the Criminal Code.
[128] To put the claim of error advanced by the appellant in its proper context, it is helpful to begin with a reference to the factors s. 745.4 requires a trial judge to take into account in establishing the period of parole ineligibility, before turning to the reasons of the trial judge and his alleged error.
The Nature and Circumstances of the Offence
[129] The appellant encountered the victim and some of his friends outside the front entrance to an apartment building. The victim and some of his friends were gang members. The appellant had been involved in an incident at a correctional centre several months earlier with some of those whom he encountered outside the apartment building, but the victim had not been among them.
[130] In response to a provocative remark directed towards him, the appellant put his hand in his pants pocket to show the victim and his friends that he (the appellant) was armed and prepared to use his weapon. The victim left the area shortly after the exchange. The appellant thought that the victim had departed to get a gun.
[131] Within minutes of this first encounter, the appellant shot the victim through the heart in front of a nearby bus shelter. The shooting took place in the early afternoon of a day in September within feet of four occupants, including two very young children, of the bus shelter and as others passed by on the street. The appellant fled on foot.
The Character of the Offender
[132] The appellant was 18 years old when he shot Stephen Barton to death and 20 when he was sentenced. Despite his youth, the appellant had accumulated nearly two dozen convictions for a hodgepodge of offences including robbery, failure to appear or comply with court orders, and various weapons, firearms and drug offences. At the time of the killing, the appellant was bound by and in breach of two separate firearm prohibitions.
[133] For several years, the appellant had been under the care of the CAS. When he turned 17, he was housed in an apartment where he lived independently with the support of the CAS.
[134] The appellant worked part-time. He also trafficked in drugs. The day before the killing he had sold drugs in Hamilton, a place to which he planned to return the day following the killing. His plans were thwarted by his arrest.
The Jury Recommendation
[135] After brief deliberations, nine jurors made no recommendation about parole ineligibility. Each of the three remaining jurors recommended that the appellant serve either 10, 11, or 12 years before eligibility for release on parole.
The Positions of the Parties at Trial
[136] The trial Crown invited the judge to impose a parole ineligibility period of 18 years. In support of her submission, Crown counsel emphasized the brazen nature of the killing, feet away from innocent bystanders; the appellant's lengthy record; his carrying of a loaded handgun in breach of not one but two firearm prohibitions; and the absence of any rehabilitative efforts and few, if any, rehabilitative prospects.
[137] Trial counsel for the appellant advocated for the minimum period of parole ineligibility – 10 years – or, in the alternative a modest increase to 12 years. She stressed the appellant's youth and his consequent potential for rehabilitation, as well as the remorse he expressed at the time of sentencing.
The Reasons for Sentence
[138] In establishing the period of parole ineligibility at 14 years, the trial judge considered the predominance of aggravating over mitigating factors and the high degree of moral culpability associated with the killing in broad daylight, literally at the feet of innocent bystanders including two very young children. The appellant, 18 years old, was walking around armed with a .38 calibre handgun in open defiance of two firearm prohibitions. He made it clear to those with whom he had a verbal contretemps that he was armed and prepared to use his weapon. The only mitigating factors were his age and his expression of remorse at sentencing. Rehabilitative prospects often associated with the youthful offenders were diminished here by the appellant's significant record and his apparent unwillingness to comply with court orders.
[139] The trial judge considered that the finding of guilt rendered by the jury reflected either of two factual determinations:
i. that the deceased did not unlawfully assault the appellant, as the appellant claimed in his trial testimony; or
ii. that the appellant had options open to him to save himself, other than shooting the deceased, if he were in fear of his life or serious harm as he asserted at trial.
The Arguments on Appeal
[140] The appellant says that the trial judge erred in principle by failing to recognize that excessive force in self-defence was a mitigating factor on sentence. Counsel acknowledged that the 14 year parole ineligibility imposed was not outside the appropriate range in the circumstances of this case, but the use of excessive force reduces the moral blameworthiness of the appellant's crime and the trial judge should have considered it in imposing the parole ineligibility period.
[141] The respondent contends that the trial judge made no error in principle that had any impact on the period of parole ineligibility imposed. To be more specific, the use of excessive force in self-defence was not an issue here. What was an issue was whether there was any basis for its self-defence, in particular, the unlawful assault alleged by the appellant at trial. Even if excessive force in self-defence were to be considered a mitigating factor on sentence, it lacks purchase here in the absence of any finding of fact necessary to engage it.
[142] In the end, the respondent says we have no error in principle, no failure to consider a relevant factor or consideration of an irrelevant factor that had any impact on the period of parole ineligibility fixed by the trial judge. The period imposed falls within, perhaps slightly below, the range of periods of parole ineligibility applicable to offences of second degree murder committed in circumstances such as these by similarly situated offenders. Deference should prevail and the appeal should be dismissed.
The Governing Principles
[143] A brief reference to two controlling precedents will suffice to establish the basis upon which we are entitled to review the sentencing decision. The first has to do with sentence review generally, the second with review of periods of parole ineligibility.
[144] Appellate review of sentencing decisions proceeds from a well-established and fully justified stance of deference. Simply put, sentencing judges are in the best position to determine a just appropriate sentence, consistent with the sentencing objectives and principles and aggravating and mitigating factors set out in Part XXIII of the Criminal Code: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.
[145] Proportionality is the cardinal principle that guides appellate courts in their consideration of the fitness of a sentence imposed on an offender. The more serious the offence and its consequences, or the greater an offender's degree of responsibility, the heavier the sentence imposed will be. Serious consequences, coupled with significant moral blameworthiness, advance the sentence upwards on the scale of available punishments: Lacasse, at para. 12.
[146] A relevant factor for a sentencing judge to consider in determining a fit sentence is the frequency with which the offence under consideration occurs in the area where the sentence is being imposed: Lacasse, at para. 13.
[147] In the end, appellate intervention in a sentence imposed at trial can only be justified where an error in principle, a failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor has had an impact on the sentence imposed: Lacasse, at paras. 43-44.
[148] Three brief points about parole ineligibility orders will round out my discussion of the governing principles.
[149] First, denunciation and deterrence, sentencing objectives within Part XXIII of the Criminal Code, are relevant considerations in determining the length of a parole ineligibility order: R. v. Shropshire, [1995] 4 S.C.R. 227, at paras. 19-21. After all, parole ineligibility orders are part of the "sentence" imposed on an offender, as defined in s. 673 of the Criminal Code.
[150] Second, the general rule that establishes the period of parole ineligibility in cases such as this at 10 years is not unyielding. The rule may be ousted by a determination by the trial judge, made after consideration of the factors enumerated in s. 745.4, that the offender should wait a longer period before having his suitability for release into the community assessed: Shropshire, at para. 27.
[151] Finally, appellate intervention should only occur where a party demonstrates the application of an erroneous principle that has resulted in a period of parole ineligibility that is clearly or manifestly excessive or inadequate: Shropshire, at paras. 47-48.
The Principles Applied
[152] For several reasons, I would not interfere with the parole ineligibility order made by the trial judge.
[153] First, the single error in principle advanced by the appellant is the alleged failure of the trial judge to consider that excessive force in self-defence is a mitigating factor on sentence. But crucial to the ameliorating influence of such a factor is a finding of fact by the trial judge that self-defence failed on the basis that the appellant used excessive force. The trial judge made no such finding under s. 724(2)(b) of the Criminal Code, nor would one have been warranted on the evidence adduced at trial. Absent such a finding, the factual predicate for the alleged error falls away, likewise the alleged error as a basis upon which to review the parole ineligibility order.
[154] Second, the authority relied upon by the appellant to support his claim that excessive force in self-defence is a mitigating factor in determining the period of parole ineligibility on conviction of second degree murder fails to establish the basis for the claim.
[155] In R. v. Trecroce (1980), 55 C.C.C. (2d) 202 (Ont. C.A.), excessive force in self-defence was advanced as a substantive doctrine, much like the statutory partial defence of provocation, to reduce what otherwise was proven to be murder to manslaughter. The argument failed. Trecroce received the minimum period of parole ineligibility. Sentence was not in issue, nor was the influence, if any, of excessive force in self-defence on a determination of the appropriate period of parole ineligibility.
[156] Third, the enhanced period of parole ineligibility imposed here falls within, perhaps even slightly below, the range of parole ineligibility orders in cases such as this. A youth, armed with an illegal handgun, in breach of not one but two firearm prohibitions, ready to shoot it out on a public thoroughfare in the presence of innocent bystanders, including two pre-schoolers, all to vindicate an inflated sense of self-worth. In a city plagued by gun violence. End of story. Res ipsa loquitur.
[157] I would grant leave to appeal, but dismiss the appeal from sentence.
Conclusion
[158] For these reasons, I would dismiss the appeal from conviction and would grant leave to appeal, but dismiss the appeal from sentence.
Released: January 18, 2017 ("DW")
"David Watt J.A."
"I agree. P. Lauwers J.A."
"I agree. B.W. Miller J.A."
