Court of Appeal for Ontario

Date: August 21, 2017

Docket: C59089

Judges: Feldman, Watt and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

John Boukhalfa Appellant

Counsel:

• Michael W. Lacy, for the appellant
• Benita Wassenaar, for the respondent

Heard: November 30, 2016

On appeal from the conviction entered on March 7, 2013, and the sentence imposed on May 27, 2013 by Justice Maureen D. Forestell of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

Introduction

[1] Shortly before Christmas a few years ago, John Boukhalfa killed his mother. He hit her on the head with a baseball bat. And stabbed her with a knife. Repeatedly.

[2] John Boukhalfa made a clumsy effort to clean up the scene, a cluttered, unsanitary, hoarder's nest of an apartment he and his mother had shared for about two decades. He did not call 911. Instead, he collected up some of his money and left the apartment.

[3] A few hours later, two police officers doing routine traffic enforcement, saw John Boukhalfa walking aimlessly on the median of a major thoroughfare. Once they determined Boukhalfa's true identity, the officers arrested him for breach of a conditional sentence order by which he was then bound. An officer saw blood on Boukhalfa's clothes and hands. Police went to the apartment. There they found the deceased. And arrested John Boukhalfa on a charge of second degree murder.

[4] At trial, the single issue for the jury to determine was the legal character of the unlawful killing of the deceased. The Crown said it was murder. The defence contended it was manslaughter. The jury concluded that John Boukhalfa committed murder.

[5] John Boukhalfa appeals. He says that his conviction is flawed because the trial judge made several mistakes in her charge to the jury and also allowed the Crown to introduce evidence that should have been excluded. In addition, he says the period of parole ineligibility imposed by the trial judge was harsh and excessive.

[6] These reasons explain why I would dismiss both appeals.

The Background Facts

[7] The allegations of error are best understood when situated in the circumstances in which they occurred, as described by their only survivor – John Boukhalfa – and discovered in the police investigation that followed.

The Principals

[8] John Boukhalfa was 26 years old when he killed his mother. He was 6 feet, 2 inches tall and weighed 200 pounds. His mother was 62 years old, 4 feet, 9 inches tall and weighed 186 pounds.

[9] During and following completion of high school, John Boukhalfa began drinking and experimenting with drugs. He got into some trouble and accumulated convictions for drug offences. After high school, he worked as a doorman/bouncer.

[10] From his early years, John Boukhalfa suffered from the effects of a mental illness. He attempted suicide on a few occasions. He was prescribed anti-psychotic medication. His mother controlled the medication and supplied it to him as prescribed.

[11] Several months before he killed his mother, John Boukhalfa was arrested on some drug offences. He was released on bail. He resolved to turn his life around. To eat healthily. To go to the gym. To go back to school. He enrolled in a broadcasting program at a local community college. He survived the first cut on his college rugby team.

[12] Antonia Zammit was John Boukhalfa's mother. During various times in her life, she had worked at different jobs. In later years, she lived on government assistance and accumulated substantial debt. She was a hoarder, reluctant to throw anything out. When her son suggested that he might leave home to attend university, she threatened suicide. John Boukhalfa believed that his mother suffered from a mental illness.

The Mother-Son Relationship

[13] John Boukhalfa's parents separated when he was very young. Since elementary school, he lived with his mother. For the past 20 years, they lived together in the apartment building where she died. For the most part, they were devoted to each other. Occasionally, however, their relationship became strained.

[14] By all accounts, their apartment was a mess. Cluttered. Unsanitary. Chock full of things Ms. Zammit had collected and refused to throw out, despite her son's entreaties to do so. John Boukhalfa tried to convince his mother to move out of their apartment to a better, safer place that they could afford because of money he had received in settlement of a motor vehicle accident in which he had been injured. All to no avail.

[15] In the weeks preceding the deceased's death, John Boukhalfa had been feeling "pretty stressed out". Pressures from work, school and home weighed down on him. He stopped taking his prescribed medication. He felt better without it.

The Neighbour's Evidence

[16] Stephanie Johnston had lived across the hall from John Boukhalfa and his mother for about ten years. She did not know their names and had never socialized with them beyond a brief "Hello" to Ms. Zammit. She had never seen any visitors enter or leave their apartment.

[17] Over the years, Ms. Johnston had heard screaming and, occasionally, swearing coming from the apartment. The voice was that of a young man, but she could not identify the speaker or describe the context in which the screaming had occurred. As the years passed, the frequency of these outbursts diminished, from every few months to a few times per year.

[18] Ms. Johnston was not around much during the year in which Antonia Zammit died. When interviewed after the death of the deceased, Ms. Johnston told police that she had heard the male voice say "Leave me alone" and "Fuck off". At trial, she could not recall making these comments to the police although she had tried her best to be truthful with them.

The Killing of the Deceased

[19] John Boukhalfa is the only survivor of the altercation that resulted in the death of Antonia Zammit. He was interviewed by police the day following his arrest. Part of the interview was admitted as evidence at trial where Boukhalfa also testified in his own defence.

[20] John Boukhalfa explained that he had breakfast with his mother in their apartment on the morning of the day he killed her. She gave him his medication. He took it. He planned to meet his rugby teammates at Christie Pits, but could not find them when he arrived there. He went to the gym, but felt unwell. Instead of going to the hospital – CAMH – he went home so that he could get another dose of his medication from his mother.

[21] John Boukhalfa asked his mother for another pill. She refused his request. He repeated his request. And she, her refusal.

[22] In his police interview, John Boukhalfa explained that he and his mother began to argue about issues of long-standing between them. The filthy and cluttered state of their apartment. Her prior suicide attempts. The unsafe nature of the place where they lived. His wish to move elsewhere and to pay for the cost of doing so. The deceased threatened to kill Boukhalfa's half-brothers and his father. She had a knife in her hand. She lunged at him. She tried to stab him, then succeeded in cutting his hand and fingers.

[23] John Boukhalfa was surprised by his mother's attack. He told police that he "snapped" as a result of years of frustration. It was either "kill or be killed". He did not want his mother dead.

[24] At trial, Boukhalfa admitted that he had hit his mother with a baseball bat. He could not recall when he so in relation to the stabbing or when he got the bat, but he denied hitting her on the back of the head. He said he used either one or two knives to stab her.

The Injuries to the Deceased

[25] The deceased suffered a multitude of sharp force injuries, both stab and incised wounds, to her head and neck. One of two injuries to the back of her head could have resulted from a blow of the baseball bat, or could have been caused by her head striking a hard surface. The deceased did not have a skull fracture or a brain injury. The examining pathologist could not determine the sequence in which the various injuries and wounds had been suffered.

[26] John Boukhalfa inflicted at least 25 sharp force injuries to his mother's neck. Their depth varied from 1 to 6.5 cm. Two wounds perforated her left jugular vein. She was stabbed four times in the torso and once in the back. She died from stab wounds to her neck.

The Post-Offence Conduct

[27] For a few hours, John Boukhalfa remained in the apartment, his mother's body on the floor. He searched around for his medication, but could not find it. He did not call 911. As he explained subsequently, it was too late to do so. His mother was dead on the kitchen floor.

[28] While in the apartment, Boukhalfa tried to wash the bloody knives and clean up other areas of the apartment. He put the knives in his gym bag. He acknowledged later that he did a poor job of cleaning up the apartment. Police found nothing of forensic value outside the apartment.

The Arrest of John Boukhalfa

[29] Shortly before midnight, several hours after he had killed his mother, police officers on routine traffic enforcement saw John Boukhalfa walking haphazardly in the central median of Lakeshore Boulevard. As they approached Boukhalfa, the officers noticed blood on his left hand. Boukhalfa explained that he had been in a fight the previous night. When asked his name, Boukhalfa lied. The officers noticed Boukhalfa's bulging pockets and asked him to empty out their contents. He produced a large amount of cash. An officer noticed some identification, picked it up and verified it through the police communication system. They then arrested Boukhalfa for breaching his conditional sentence order. His arrest for murder followed discovery of his mother's body at their apartment.

The Condition of John Boukhalfa

[30] Arresting officers noticed cuts on his left hand, on the inside and outside of his finger and on his thumb. Some were defensive wounds. Others could have resulted from slippage of the knife used to stab his mother; self-inflicted wounds as he stabbed the deceased; or cuts inflicted by the deceased. He also had a single, but not serious cut to his stomach.

The Positions at Trial

[31] The issue framed for the jury's determination was the legal character of the unlawful killing of the deceased. Was it second murder degree as the Crown contended, or manslaughter as the defence submitted?

[32] The trial Crown rejected any suggestion that the deceased attempted or actually stabbed Boukhalfa and portrayed him as fed up and frustrated with his living conditions and his mother's refusal to give him more prescribed medication that he felt he needed. He stabbed his mother to death in circumstances that amounted to second degree murder.

[33] Trial counsel for Boukhalfa did not concede, but did not vigorously contest the intentional nature of the unlawful killing of the deceased. He urged the jury to find Boukhalfa not guilty of murder, but guilty of manslaughter on the basis of the statutory partial defence of provocation.

[34] Neither self-defence nor lack of criminal responsibility on account of mental disorder was in play at trial.

THE GROUNDS OF APPEAL

[35] On the appeal from conviction, John Boukhalfa ("the appellant") complains not only about misreception of evidence, but also about errors in the charge to the jury and in responding to a question asked by the jury during deliberations. I would paraphrase the grounds of appeal he advances as errors in:

i. instructing the jury on the relevance of mistake to the statutory partial defence of provocation in responding to an in-deliberation question by the jury;

ii. instructing the jury on provocation;

iii. editing the police interview of the appellant and explaining its use to the jury; and

iv. admitting the evidence of Stephanie Johnston about what she heard said by a male voice in the appellant's apartment.

[36] On the appeal from sentence, the appellant contends that the period of parole ineligibility fixed by the trial judge is harsh and excessive.

THE APPEAL FROM CONVICTION

Ground #1: The Jury Question

[37] During deliberations, the jury asked a question. The judge's response, the appellant contends, was wrong. Prior to a canvass of the arguments advanced and the principles that control our decision, it is helpful to begin with the question, the positions of the parties that informed the judge's response and the judge's response.

The Jury Question

[38] The question posed by the jury was this:

Your Honour, if we agree to find that the mother stabbed John Boukhalfa accidentally, is that considered a wrongful act?

The Positions of Counsel at Trial

[39] Trial counsel for the appellant took the lead in discussions about how the jury's question should be answered. In his view, what was critical was what was in the appellant's mind, not the mind of the deceased. He argued that provided the appellant reasonably believed that the deceased's stab was intentional, that was a wrongful act for the purposes of the provocation defence. He framed the issue as whether the appellant mistakenly believed, as an ordinary person in the same circumstances would, that the stabbing was intentional on the part of the deceased:

THE COURT: The issue for them to decide is, did Mr. Boukhalfa mistakenly believe that the stabbing by Ms. Zammit was intentional…

THE COURT: …and would an ordinary person in the same circumstances have mistakenly believed that the stabbing was intentional.

THE COURT: So that's what I need to tell them.

The Judge's Answer

[40] Trial counsel on both sides agreed with the trial judge's response to the jury's question:

In determining whether there was a wrongful act or insult, what was in the mind of Ms. Zammit, or Ms. Zammit's intention, is not relevant.

The questions for you to determine, if you find that the stabbing was accidental, are:

1. Did Mr. Boukhalfa honestly but mistakenly believe that his mother stabbed him intentionally; and

2. Would an ordinary person in the same circumstances have mistakenly believed that the stabbing was intentional.

The Arguments on Appeal

[41] The appellant makes two points in support of this ground of appeal. The first has to do with the correctness of the trial judge's answer, the second with its completeness.

[42] First, correctness. The appellant says that, despite the agreement of trial counsel, the trial judge's response to the jury's question was legally wrong and beyond redemption by s. 686(1)(b)(iii). The error, the appellant submits, consisted of imposing a requirement that a reasonable person in equivalent circumstances would make the same mistake as the appellant. The reasonable person or objective standard only applies to an accused's reaction to the provocative words or event, not to the accused's perception of an event as provocative.

[43] The error here occurred, the appellant continues, because counsel considered the decision of the Alberta Court of Appeal in R. v. Hansford (1987), 33 C.C.C. (3d) 74 accurately stated the law and persuaded the judge to the same view. But Hansford was wrongly decided and is inconsistent with judgments of the Supreme Court of Canada, which make it clear that mistakes must be honestly made, but need not be reasonable. To add an objective requirement artificially limited the provocation defence advanced by the appellant and caused a miscarriage of justice.

[44] Second, completeness. The appellant submits that even if the judge's answer to the jury's question was correct, the trial judge was required to provide a review of the evidence relevant to the issue raised by the jury's question. Her failure to do so reflects legal error.

[45] The respondent characterizes the judge's response to the question, which duplicated the submissions of counsel, as at once correct and complete.

[46] The respondent acknowledges that the jury was entitled to an answer to their question. That said, as the sole surviving witness to the events surrounding the death of the deceased, the appellant's account – that the deceased "lunged at" him – excludes any role for mistake. The judge's response to the jury question was legally correct. But it exceeded the appellant's entitlement by providing a basis for the provocation defence founded on a mistake of which there was no evidence.

[47] Further, the respondent continues, the judge's answer was responsive to the jury's question. That is all that was required. The question did not seek a review of the evidence that was relevant to it, nor was it a reasonable inference from the question that such a review was a necessary component of the correct response.

The Governing Principles

[48] The definition of the statutory partial defence of provocation that governed the jury's determination at trial was the former s. 232(2):

A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.

[49] Section 232(2) defines what constitutes provocation sufficient to reduce an unlawful killing from murder to manslaughter. Fundamental to the availability of the defence in this case is a triggering event that falls within the statutory phrase "a wrongful act or insult". At the very least, "a wrongful act" includes conduct that amounts to an offence, such as an assault, whether actual or apprehended under ss. 265(1) (a) and (b) of the Criminal Code.

[50] But, on its own, "a wrongful act or insult" will not constitute provocation. The "wrongful act or insult" must be of a specific quality or nature, that is to say, of sufficient gravity or significance to deprive an ordinary person of the power of self-control. This is the objective element or test, the "ordinary person" standard: R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 33; R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 25; R. v. Thibert, [1996] 1 S.C.R. 37, at para. 4; R. v. Hill, [1986] 1 S.C.R. 313, at para. 16.

[51] At first blush, inclusion of an objective element or standard in the definition of provocation seems paradoxical. After all, the ordinary or reasonable person does not lose control, much less kill a fellow human being. But the partial defence of provocation recognizes human frailties and that those frailties can lead to violence, fatal violence: Cairney, at para. 36. The objective element or standard represents Parliament's attempt to weigh in balance those very human qualities which sometimes lead people to act irrationally and impulsively, on the one hand, and the need to protect society by discouraging acts of homicidal violence, on the other: Tran, at para. 4.

[52] This "ordinary person" requirement limits the availability of the defence of provocation. It does so to ensure that the criminal law encourages reasonable and responsible behaviour. But a rigid and abstract application of this objective standard would run the risk of rendering this defence, which is, after all, a concession to human frailty, unavailable in almost all situations. And so it is that we apply this objective standard in a contextual way: Cairney, at paras. 38, 40 and 41; Thibert, at paras. 14, 18 and 19.

[53] It should come as no surprise that a defence based on a loss of control would make allowances for mistaken perceptions about the source and nature of the conduct that gives rise to the loss of control.

[54] In R. v. Manchuk, [1938] S.C.R. 18, the court acknowledged that an accused who intentionally killed another in the mistaken belief that the other participated in the wrongful act or insult that caused the accused to lose self-control may invoke provocation to reduce the crime from murder to manslaughter: Manchuk, at pp. 19-20.

[55] In Hansford, the appellant argued that the trial judge had erred in law in failing to instruct the jury that the provocation defence remained open to an accused who acted on a mistaken belief about the nature of conduct, which if true, would have amounted to a "wrongful act" for the purposes of the statutory partial defence of provocation. The court concluded that mistake of fact could be relevant to the objective branch of provocation. This is so because it is open to an accused to say that any ordinary person would have misinterpreted the facts which confronted the accused. However, the requirement for normalcy in the objective test applies, not only to the reaction by an ordinary person to such events, but also to how the ordinary person would have interpreted those events: Hansford, at p. 79.

[56] To determine whether this ground of appeal has been made out, we must also keep in mind the principles that govern appellate review of trial judge's responses to in-deliberation questions from the jury.

[57] Questions from a jury during deliberations indicate some difficulty with the subject-matter of the question and the need for judicial assistance through further instruction about it. Jurors are entitled to clear, correct and comprehensive responses to their questions: R. v. W. (D.), [1991] 1 S.C.R. 742, at pp. 759-760; R. v. S. (W.D.), [1994] 3 S.C.R. 521, at pp. 528-531. In addition, nothing said or left unsaid in response to a jury's question should discourage jurors from asking further questions: R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540, at paras. 29-31.

The Principles Applied

[58] As I will explain, I would not accede to this claim of error in either respect advanced.

[59] At the outset, it is helpful to recall the circumstances in which the underlying wrongful act is alleged to have occurred.

[60] The appellant claimed the deceased, a knife in her hand, "lunged at" him. In other words, the loss of control was in response to an actual assault by the deceased. On this point, he did not equivocate. This is not the stuff of mistake or misperception, as in Manchuk or Hansford.

[61] Second, not only was the trial judge's response to the jury's question not the subject of an objection by very experienced trial counsel for the appellant, but also it was the very answer suggested and approved by counsel.

[62] Third, the trial judge's reply is supported by authority and consistent with the policy considerations that underlie the statutory partial defence of provocation.

[63] As we have already seen, a mistaken belief that the person killed was an author of the wrongful act that provoked the loss of self-control does not disentitle an accused from reliance on provocation. That principle is established by Manchuk. See also, R. v. Droste (No. 2) (1981), 63 C.C.C. (2d) 418 (Ont. C.A.), at p. 424, affirmed on other grounds [1984] 1 S.C.R. 204.

[64] Further, an accused who mistakenly considers conduct to be of such a nature as would amount to a wrongful act – for example, the unwanted sexual advance in Hansford – is similarly entitled to rely on provocation, provided that an ordinary person in similar circumstances would have misinterpreted the facts in a similar way. That principle emerges from Hansford.

[65] The response of the trial judge to the jury's question and the principle elucidated in Hansford also sit comfortably with the nature of the provocation defence and, in particular, its objective element or component.

[66] We recognize mistaken perceptions about the conduct of others and underlying circumstances in connection with other defences, justifications and excuses. To be fair, some are statutory, like self-defence and defence of property. Others may combine common law and statutory principles, like mistaken belief in consent. There would seem no reason in principle to deny a place for the same mistakes in connection with provocation.

[67] In addition, the evaluative test – the objective standard that lies at the threshold – is concerned with excluding from the reach of the defence unusual deficiencies in self-control, those that fall below the level expected of our fellow citizens. The requirement that an accused's mistake be reasonable is consistent with the objective standard, not incompatible with it.

[68] In any event, even if the response to the jury's question were considered to be an error, the appellant suffered no prejudice as a result because a claim of mistake lacks an air of reality. According to the appellant, his mother "lunged at" him with a knife. It was "kill or be killed". In addition, even if the appellant's belief need only have been honestly held, the presence or absence of reasonable grounds for it was a factor for the jury to consider in deciding whether it was honestly held.

[69] As for the failure to review relevant parts of the evidence in response to the jury's question, I would reject this complaint for essentially three reasons.

[70] First, the judge was asked a specific question by the jury. She answered that question. Clearly. Correctly. And comprehensively. The jury did not ask for a review of the salient features of the evidence in connection with their question. The judge's obligation was to answer the question as it was asked, not to answer a question that was not asked.

[71] Second, the answer provided was what trial counsel for the appellant sought. What happened here was not simply a failure to object. The reply was exactly what experienced trial counsel requested.

[72] Third, nothing the trial judge said or left unsaid discouraged the jury from asking further questions or seeking a refresher about the evidence that could assist their determination of the question they asked. Indeed, the trial judge expressly advised the jury of their right to ask further questions. They did not do so.

[73] This ground of appeal fails.

Ground #2: The Instructions on Provocation and Provoking Conduct

[74] The second ground of appeal alleges three discrete but related errors in the trial judge's instructions on the defence of provocation and the impact of evidence of provocative conduct on proof of the mental element in murder. The relevant evidentiary background has already been canvassed and need not be repeated.

The Arguments on Appeal

[75] The appellant complains first of non-direction. He says that the trial judge should have told the jury that, even if they rejected the statutory partial defence of provocation, the entire body of evidence about the deceased's threats and assault, and the appellant's response, was relevant to and required consideration in determining whether the Crown had proven a mental state necessary for the unlawful killing to constitute murder. The failure of the trial judge to give this instruction, the appellant continues, was non-direction amounting to misdirection.

[76] Second, the appellant says that the trial judge erred in instructing the jury that they could consider the disparity in age, strength and size between the appellant and deceased in determining whether provocation reduced murder to manslaughter. In this case, the basis of the provocation defence was rage, not fear. The disparity in age, strength and size was not an inherent characteristic of the appellant, thus not relevant to contextualize the ordinary person or objective standard of provocation. Nor did it have anything to do with the subjective standard as it might, for example, in self-defence.

[77] Third, the appellant continues, the trial judge erroneously told the jury that a wrongful act could not be the predictable result of something the accused urged, instigated or encouraged the deceased to do. The requirement that the wrongful act or insult be sudden does not render the prior history between the appellant and deceased irrelevant or foreclose the availability of the provocation defence. The prior relationship is a factor for the jury to consider, but it does not disentitle reliance on provocation as a defence.

[78] The respondent acknowledges the distinction between the statutory partial defence of provocation, which reduces murder to manslaughter, and evidence of provoking words and conduct by a deceased, as well of an accused's reaction to it, which is relevant to proof of the mental or fault element in murder.

[79] In this case, the respondent says, the trial judge distinguished between the statutory defence and evidence of provoking words and conduct outside the confines of s. 232(2) of the Criminal Code. The trial judge repeatedly told the jurors to consider all the evidence in determining whether the Crown had proven the mental or fault element required to prove the unlawful killing was murder beyond a reasonable doubt. She referred specifically to evidence about the appellant's rage; his instinctive reaction to the brandished knife; the sudden excitement; the absence of thought; and his description that he "snapped". Experienced trial counsel uttered not a word of objection to the recital of relevant considerations.

[80] As for the disparity in age, size and strength between the appellant and the deceased and its relevance to the defence of provocation, the respondent points out that trial counsel for the appellant adduced this evidence at trial. He then asked the appellant (in light of this disparity) why he stabbed his mother. The appellant responded that it was a case of "kill or be killed". The evidence was tied to the narrative about the wrongful act, but was also relevant to impeach the credibility of the appellant by suggesting the implausibility of his claim that his mother would attack him as he testified. The respondent adds that the judge's only reference to this evidence was in a lengthy summary of the evidence about proof of the fault or mental element in murder. This was not a legal instruction and attracted no objection from defence counsel.

[81] The respondent rejects any suggestion of misdirection on the suddenness requirement in light of the prior relationship between the appellant and his mother. Provocation was left here on the basis of the sudden lunge by the deceased. On this basis, the prior relationship was of no moment, likewise any instruction about its relevance.

The Governing Principles

[82] Three areas of principle control the determination of this ground of appeal.

[83] First, the relevance of provoking words and conduct to proof of the fault or mental element in murder.

[84] To determine whether the Crown has proven beyond a reasonable doubt a fault or mental element required to establish that an unlawful killing was murder, a jury is entitled to consider – and be instructed to consider – the cumulative effect of all the evidence relevant to the issue. Things done or not done. Things said or not said. Before. At the time. And later: R. v. Flores, 2011 ONCA 155, 269 C.C.C. (3d) 194, at paras. 73-75; R. v. Cudjoe, 2009 ONCA 543, 68 C.R. (6th) 86, at para. 109.

[85] Among the items of relevant evidence a jury is entitled to consider in proof of the fault or mental element is evidence of contemporaneous provoking words and conduct. The phrase "provoking words and conduct" in this context exceeds what is encompassed by s. 232(2): Flores, at para. 72; Cudjoe, at para. 107; R. v. Bouchard, 2013 ONCA 791, 305 C.C.C. (3d) 240, at para. 62, affirmed 2014 SCC 64, [2014] 3 S.C.R. 283, at para. 2.

[86] A "rolled-up" instruction reminds jurors that they must consider the cumulative effect of "all the evidence" relevant to an accused's state of mind in deciding whether the Crown has proven beyond a reasonable doubt that the accused had a state of mind required to make an unlawful killing murder. Where there is evidence of allegedly provocative words and conduct by the deceased and of the accused's reaction to them, the "rolled-up" instruction should include a reference to them: Flores, at para. 84; Cudjoe, at paras. 108-109.

[87] Second, the relevance of the disparity in age, size and strength to the defence of provocation.

[88] The purpose of the objective component or ordinary person standard in provocation is to impose a minimum standard of self-control on all members of society and reflect the fundamental values that animate and order Canadian society: R. v. Hill, 2015 ONCA 616, 330 C.C.C. (3d) 1, at para. 78 (Hill '15); Cairney, at para. 37; Tran, at paras. 30-34.

[89] Although, as we saw earlier, we contextualize the ordinary person so as not to unduly restrict the availability of the statutory partial defence, size and athletic ability are not characteristics of any inherent relevance to the degree of self-control expected of an ordinary person. It follows that neither characteristic is relevant to the ordinary person test in s. 232(2): Hill '15, at paras. 84-88.

[90] A final point on this issue. Unlike some justifications and excuses, such as self-defence and duress, provocation does not measure an accused's responsive conduct against some standard of reasonableness or proportionality: Hill '15, at para. 88. Were that so, disparity in age, size and strength may have some relevance, but not otherwise.

[91] Third, the requirement of suddenness and the impact of cumulative or self-induced provocation.

[92] It is uncontroversial that suddenness must characterize not only the wrongful act or insult, but also the responsive conduct of the accused. To be more specific, the wrongful act or insult must strike upon a mind unprepared for it, make an unexpected impact that takes the understanding by surprise and set the passions aflame: R. v. Tripodi, [1955] S.C.R. 438, at p. 443; Thibert, at para. 20.

[93] The suddenness requirement does not foreclose consideration of the history and background of the relationship between the principals as relevant to the objective standard or ordinary person test. All contextual factors that would give the act or insult special significance to an ordinary person must be taken into account: Thibert, at para. 18; Cairney, at para. 39.

[94] The fact that provocation is "self-induced" may be relevant, not only to the objective, but also to the subjective component of the statutory defence in s. 232(2). But "self-induced" provocation is not some special category or sub-species of the genus "provocation" subject to special principles. It is neither more nor less than a particular application of the principles that govern the defence: Cairney, at para. 56.

The Principles Applied

[95] I would not give effect to this ground of appeal in any of its aspects. As I will explain, I am satisfied that, read as whole, the trial judge's final instructions do not reveal reversible error.

[96] First, the relevance of provoking words and conduct of the deceased, beyond the scope of s. 232(2) of the Criminal Code, to proof of the fault or mental element in murder.

[97] In her final instructions, the trial judge separated out the essential elements of second degree murder. She then organized them as a series of steps which she converted to questions for the jury to consider and answer:

i. Did Mr. Boukhalfa cause Antonia Zammit's death?

ii. Did Mr. Boukhalfa cause Antonia Zammit's death unlawfully?

iii. Did Mr. Boukhalfa have the state of mind required for murder?

The first two questions and the essential elements reflected in them were uncontroversial.

[98] In her instructions following the third question, after explaining the fault or mental element required to make an unlawful killing murder, the trial judge continued:

To determine Mr. Boukhalfa's state of mind, what he meant to do, you should consider all of the evidence. You should look at Mr. Boukhalfa's words and conduct before, at the time, and after the unlawful act that caused Ms. Zammit's death. All of these things, and the circumstances in which they happened, may shed light on Mr. Boukhalfa's state of mind at the time; they may help you to decide what he meant or didn't mean to do. In considering all the evidence, use your good common sense.

[99] The trial judge then reviewed at some length various aspects of the evidence adduced at trial that could assist the jury in deciding whether the appellant's unlawful killing of the deceased was murder. She concluded this portion of her instructions in this way:

You should consider the evidence that Mr. Boukhalfa was confused, and dazed, and in a rage not just by itself, but all together, and along with any other evidence that might suggest that Mr. Boukhalfa acted instinctively, in the sudden excitement of the moment, without thinking about the consequences of what he did, and without either state of mind necessary to make the unlawful killing of Antonia Zammit murder.

This evidence does not necessarily mean, however, that Mr. Boukhalfa did not have either mental state necessary to make the unlawful killing of Ms. Zammit murder. The fact that Mr. Boukhalfa may have been angry is not necessarily inconsistent with either state of mind required to make the unlawful killing murder.

Feeling angry at someone, or about something, may cause a person to have one of the states of mind necessary for murder. As a result, and apart altogether from what I will tell you later about provocation, Mr. Boukhalfa's anger, on its own, is not enough to reduce murder to manslaughter. On the other hand, when considered along with the evidence of a confused or dazed condition, evidence of anger may raise a reasonable doubt whether, when he unlawfully killed Ms. Zammit, Mr. Boukhalfa had either state of mind required for murder. It is for you to say. Use your good common sense.

[100] In this passage, the trial judge made it clear that evidence of the provoking words and conduct of the deceased, as well their sequelae – the instinctive, excited, unthinking response of the appellant – was relevant evidence for the jurors to consider in their assessment of the adequacy of the Crown's proof of the fault or mental element in murder. Not only the language used by the trial judge, but also the separation of this issue from the statutory defence, the discussion of which did not occur until later in the charge, would have left no room for doubt about the use of this evidence to determine whether the appellant had committed murder.

[101] Second, the relevance of disparity in age, size and strength to the availability of the provocation defence.

[102] In her instructions on the essential components of the statutory defence of provocation, the trial judge made no reference to the relevance of disparity in age, size and strength between the appellant and the deceased. Her only reference to this subject was in her review of the evidence that was relevant to proof of the fault or mental element in murder.

[103] In addition, when the trial judge contextualized the "ordinary person" or objective standard in provocation, the only additional factors she mentioned were:

i. age;

ii. sex; and

iii. prior relationship history with the deceased.

The absence of any reference to the disparity in size and strength from these contextualizing factors would not have been lost on the jury.

[104] Third, the requirement of suddenness.

[105] The trial judge included references to the background and history of the relationship between the principals, not only in contextualizing the ordinary person or objective standard, but also in connection with the subjective component of provocation. In these circumstances, and in the absence of any objection from defence counsel, the absence of any further reference did not cause the appellant any prejudice.

Ground #3: The Post-Arrest Interview

[106] This ground of appeal focuses on the manner in which the trial judge edited a videotaped interview of the appellant by two officers from the Homicide Squad and what she told the jury about the way in which they could use this evidence in deciding the case.

[107] In oral argument, the appellant expanded the scope of his complaint to include submissions that were not made in his factum or advanced by experienced trial counsel.

[108] Some brief background will provide the essential context for consideration of this ground of appeal.

The Background

[109] The police interview upon which this ground of appeal focuses began about 15 hours after the appellant's arrest on a charge of murder. The interview, which was audio and video recorded, lasted about three hours.

[110] The appellant's arrest for murder occurred about four hours after his apprehension and arrest for breach of his conditional sentence order. On arrest, he was cautioned and advised of his Charter rights. He invoked his right to counsel, then spoke with duty counsel and a criminal lawyer. Officers from the Homicide Squad approached him briefly about 13 hours after his arrest, but did not interview him until 2 hours later.

The Position of Counsel at Trial

[111] At trial, the appellant challenged the admissibility of the interview on the ground of voluntariness.

[112] Trial counsel argued that the cumulative effect of several factors overbore the appellant's will and raised a reasonable doubt about the voluntariness of the interview. Inadequate information about the classification of murder with which he was charged and the name of the deceased. The failure to provide medical attention for the appellant's injuries. The use of a stratagem. The offer of an inducement. Denigration of the role of defence counsel.

[113] The trial Crown resisted the claim of involuntariness. The appellant's responses were voluntary. No threats were made, or inducements offered. Nothing said, done or omitted created an atmosphere of oppression. The appellant had an operating mind. No comments about the role of defence counsel tainted the voluntariness of the interview.

[114] At trial, the appellant advanced no claim of Charter infringement. He did not contend that this interview had been "obtained in a manner" that infringed any enumerated Charter right or freedom, or argue that the interview should be excluded under s. 24(2) of the Charter. As a result, the appellant adduced no evidence on the issues of constitutional infringement, or the nexus between any infringement and the police interview and made no submissions about exclusion under s. 24(2) or any remedy under s. 24(1). The trial judge made no findings of fact and reached no conclusions on any of these issues.

The Ruling of the Trial Judge

[115] The trial judge provided written reasons for her decision on the voluntariness of the police interview. She explained why she found the interview was voluntary up to the point at which Detective Louhikari referred to putting a "spin" on the appellant's story. This, the trial judge reasoned, amounted to an inducement and rendered the balance of the statement inadmissible.

[116] The trial judge rejected trial counsel's argument that the entire portion of the interview conducted by Det. Louhikari should be excluded because its prejudicial effect exceeded its probative value. She did edit parts of the interview that refer to the appellant's involvement in other offences.

The Arguments on Appeal

[117] In his factum, the appellant reiterated the argument advanced at trial which sought the exclusion of the entire portion of the interview conducted by Det. Louhikari, even if it were voluntary, because its prejudicial effect exceeded its probative value.

[118] The appellant says that the probative value of the Louhikari portion of the interview was minimal, yet the prejudice was significant. The prejudicial effect arose from a combination of sources. The number and length of pauses and silence in response to police questions. The characterization by Det. Louhikari that the appellant's answers were lies, ridiculous, game-playing and would cause women in the future to be afraid of him. And then the reference to killing some "random dude", leaving the impression that the appellant was a dangerous man.

[119] In oral argument, the appellant advanced a further basis upon which to justify exclusion of the Louhikari portion of the interview, including those parts preceding the finding of involuntariness. A finding of voluntariness, the appellant says, of necessity entails a finding that the appellant's right to silence has been infringed. This infringement requires exclusion of the full interview despite the fact that it occurred after what had previously been found voluntary. In an alternative submission, the appellant invoked the principles put in place by R. v. Pino, 2016 ONCA 389.

[120] The respondent says that neither argument advanced by the appellant warrants our intervention.

[121] To begin, the respondent contends, decisions about editing a police interview, its nature and extent, involve the exercise of judicial discretion. The trial judge applied the proper principles, did not misapprehend the evidence and reached a reasonable conclusion. Her decision is entitled to deference. Nothing warrants our intervention.

[122] The probative value/prejudicial effect analysis, the respondent continues, is not so one-sided as the appellant characterizes it. In addition to the substance of what the appellant said, the video demonstrates the appellant's use of his right hand, thus contradicting his claim that he is left-handed, and also furnishes evidence that is relevant to an assessment of his credibility as a witness and the reliability of his testimony.

[123] The respondent points out that an objective assessment of the prejudicial effect of the earlier portion of the police interview reveals little prejudice. None emerges from the hesitations and failures to respond since each was the subject of mid-trial and final instructions that enjoined jury use in assessing the adequacy of the evidence to establish guilt. And the interview revealed no evidence of bad character or disposition apt to lead to propensity reasoning as a route to guilt.

[124] In connection with the further ground raised in oral argument, the respondent says that the appellant should not be permitted to raise this issue for the first time on appeal. The trial record lacks the necessary evidentiary foundation, as well as critical findings of fact. What is more, the argument now advanced is seriously flawed. A finding of voluntariness extinguishes any complaint about a breach of the right to silence. And a reasonable doubt about voluntariness cannot establish a breach of the right to silence on a balance of probabilities, an essential gateway to s. 24(2). The second impediment to the operation of s. 24(2) is that what occurred here does not fall within the nexus required by the phrase "obtained in a manner" in s. 24(2).

The Governing Principles

[125] Several principles have a say in our determination of this ground of appeal.

[126] First, raising issues for the first time on appeal.

[127] In the normal course of events, evidentiary records are created in trial courts, then reviewed for error and interpreted in appellate courts. Failure to raise an issue at trial deprives the trial court of the evidentiary wherewithal to make findings of fact, draw inferences and reach conclusions on legal issues. Further, the deficiency in the trial record impedes meaningful appellate review.

[128] Immature or incomplete trial records, an inevitable consequence of failing to raise an issue or advance an argument at trial, yield a principle that appellate courts generally will not entertain an issue for the first time on appeal: Pino, at para. 45; R. v. Ralph, 2014 ONCA 3, at para. 21; R. v. Richards, 2015 ONCA 348, at para. 49.

[129] Second, the relationship between issues of voluntariness and the right to silence in statements made to persons in authority by those accused of crime.

[130] The common law right to silence does not include the right of a person under arrest not to be spoken to by police: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 28. The voluntariness requirement includes the common law principle of the right to silence: Singh, at para. 31. And so it is that any inquiry into the voluntariness of a statement made by an accused to a person in authority focuses on the conduct of the police and the effect of that conduct on the accused's right to choose or exercise free will in deciding whether to speak or say nothing: Singh, at para. 36.

[131] A finding that the Crown has proven the voluntariness of an accused's statement to a person in authority beyond a reasonable doubt has implications for related claims about compromise of the right to silence within s. 7 of the Charter. If the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in connection with the same statement or interview. Conversely, where an accused can show, on a balance of probabilities, that his or her right to silence has been breached, the Crown cannot succeed in demonstrating the voluntariness of the same statement beyond a reasonable doubt: Singh, at paras. 37, 39.

[132] On the other hand, it would seem logically to follow that a reasonable doubt about voluntariness may not necessarily or will not on its own support a finding, on a balance of probabilities, that the right to silence protected by s. 7 of the Charter has been infringed.

[133] Third, the meaning of "obtained in a manner" within s. 24(2) of the Charter.

[134] In assigning meaning to the phrase "obtained in a manner" in s. 24(2), our approach is to be generous, consistent with the purpose of the subsection, and take into consideration the entire chain of events surrounding the infringement and discovery of the evidence. The "obtained in a manner" requirement may be met where the evidence and the breach are part of the same transaction or course of conduct. The connection between the breach and the evidence may be causal, temporal, contextual or any combination of these three relationships, so long as they are neither too tenuous or too remote: Pino, at para. 72.

[135] Sometimes, Charter breaches that occur after discovery of evidence tendered for admission may result in exclusion of the evidence under s. 24(2): Pino, at para. 48. But the mere fact that the Charter breach occurred after discovery of the evidence does not, without more, provide a gateway to s. 24(2). The evidence and Charter breach must be part of the same transaction or course of conduct, the connection – causal, temporal, contextual or some combination –not too tenuous or remote.

[136] Finally, the effect of exercising the right to silence.

[137] Where a statement or interview, which includes express assertions of the right to silence or failures to respond to questions that may yield an inference of its invocation, is admitted in evidence, a trial judge should provide a limiting instruction to jurors. The purpose of this prophylactic is to ensure that an accused does not pay an evidentiary price for the exercise of a constitutional right: Hill '15, at para. 46.

The Principles Applied

[138] As I will explain, I would reject this ground of appeal, not only as originally advanced, but also as expanded in oral argument.

[139] First, the original complaint.

[140] The original argument simply recycles the submissions made at trial. In combination, the number and length of pauses and silence; the characterization of the appellant's responses and the likely impact of his conduct on future relationships; and the "random dude" reference tips the probative value/prejudicial effect balance in favour of exclusion.

[141] The trial judge considered and rejected these submissions. Her analysis and conclusion reflect no error in principle. Nor any misapprehension of evidence. Her conclusion is not unreasonable. Nothing said in argument dislodges the substantial deference that is the trial judge's due. No intervention can be justified.

[142] Further, as the recorded interview was about to be played for the jury, the trial judge instructed the jury at some length about the use they could later make of this evidence. They could believe some, none or all of it. They could assign such weight to it as they saw fit. The evidence was what they saw and heard the appellant say, not what the officers said. The appellant was under no obligation to speak to the police or to answer any of their questions. That he sometimes hesitated or said nothing was not evidence that jurors could consider in reaching their decision about guilt. The same was true of the appellant's exercise of his right to counsel. The "random dude" reference originated with the appellant. Its repetition by investigators created no prejudice.

[143] I would also not give effect to the additional complaints advanced in oral argument. My reasons are twofold. The first, procedural. The second, substantive.

[144] This argument is advanced for the first time in this court. At trial, the challenge to the admissibility of the police interview was solely on the basis of voluntariness. The appellant argued that, in combination, several factors raised a reasonable doubt about voluntariness. Alternatively, if the interview were found voluntary, exclusion should follow because its probative value was overborne by its prejudicial effect.

[145] The trial record is barren of any claim of Charter infringement; of any asserted nexus between a Charter infringement and the discovery or obtaining of the interview as evidence; and of any suggestion that admission of the evidence would bring the administration of justice into disrepute. Correspondingly, no evidence was adduced on any of these issues and no findings made. I see no reason to depart from the general rule that we should not serve as a court of first instance on this issue.

[146] The argument now advanced travels a route that begins by treating a reasonable doubt about the Crown's proof of voluntariness following the finding of an impermissible inducement as equivalent to a finding, on a balance of probabilities, of a breach of the right to silence under s. 7 of the Charter. This serves as a gateway to s. 24(2) and should result in exclusion of the interview under that provision.

[147] It is correct to say that a finding beyond a reasonable doubt that an interview was voluntary eliminates any claim that the right to silence under s. 7 has been infringed. And it is equally correct to say that a finding, on a balance of probabilities, that the right to silence has been infringed means that the Crown will not be able to prove the voluntariness of the interview beyond a reasonable doubt. But it by no means follows from a reasonable doubt about voluntariness that an accused has established, on a balance of probabilities, an infringement of the right to silence under s. 7 of the Charter.

[148] To access the exclusionary rule of s. 24(2), an accused must establish, on a balance of probabilities, not only an infringement of a Charter protected right or freedom, but also a nexus between that infringement and the discovery of evidence tendered for admission. This nexus is expressed in the phrase "obtained in a manner" in s. 24(2).

[149] The appellant's claim founders on both grounds. He has failed to establish, on a balance of probabilities, an infringement of the right to silence in s. 7. A reasonable doubt about voluntariness is not the functional equivalent of a likely breach of the right to silence. The inability of one party (the Crown) to prove voluntariness beyond a reasonable doubt is not the equivalent of the other party (the appellant) establishing the likelihood of a breach of the right to silence.

[150] Nor does the conscription of Pino, a decision not available to the trial judge, assist the appellant.

[151] Recall that in Pino the first Charter infringement, a breach of s. 8, occurred because of the manner in which the appellant was arrested. A search incident to that arrest resulted in seizure of drugs in the trunk of the motor vehicle occupied by Pino. Two breaches of the right to counsel under s. 10(b) followed seizure of the drugs. The first involved misinformation about the right, the second a failure to facilitate the right once invoked.

[152] In deciding whether to admit the drugs as evidence in Pino, the trial judge limited his analysis to the circumstances of the s. 8 breach since it could not be said that the drugs were "obtained in a manner" that infringed s. 10(b) because the infringements took place after the drugs had been found in a search incident to arrest. This court disagreed, concluding that all the infringements were part of the same transaction beginning with Pino's arrest which involved a breach of s. 8.

[153] In Pino, it could fairly be said that the after-the-discovery infringement was part of the same transaction, course of conduct or series of events as the earlier infringement. That is simply not this case.

[154] I would not give effect to this ground of appeal.

Ground #4: The Neighbour's Evidence

[155] The final ground of appeal against conviction focuses upon an admissibility ruling made by the trial judge about the evidence of a neighbour who lived across the hall from the apartment occupied by the deceased and the appellant.

[156] The substance of the evidence of the neighbour – Stephanie Johnston – has been summarized in paras. 16-18 of these reasons. Some features of it warrant brief reminder before I turn to the basis upon which it was admitted at trial and the correctness of that decision.

The Background

[157] Stephanie Johnston recalled hearing a young male voice yelling in the Zammit/Boukhalfa apartment on different occasions over a period of ten years. She could not identify the speaker, but it is a reasonable inference that the speaker was the appellant, the only male occupant of the apartment. These outbursts were not constant, rather intermittent, and decreased in frequency as the years passed. Ms. Johnston did not hear a female voice, but acknowledged the possibility that a female could have spoken and she (Ms. Johnston) simply did not hear it.

[158] Ms. Johnston did not hear any raised voices or argument on the evening before the deceased died.

The Positions at Trial

[159] Trial counsel for the appellant objected to the admissibility of Stephanie Johnston's evidence. He contended that the evidence, which involved discreditable conduct, lacked context, was temporally remote from the killing of the deceased and enhanced the likelihood of jury speculation and propensity reasoning. The amorphous nature of the evidence, coupled with its remoteness and the absence of any nexus to material events, rendered it of negligible probative value and tipped the balance against admissibility.

[160] The trial Crown argued that it was open to the jury to infer that, as the only male occupant of the apartment, the appellant was the person whose voice Ms. Johnston heard. With that threshold finding, the jury could conclude that the outbursts were reflective of the nature of the relationship between mother and son, demonstrative of an animus on the appellant's part towards the deceased and indicative of his state of mind when he killed his mother. In sum, the evidence had significant probative value.

[161] The trial Crown described the prejudicial effect of the evidence as negligible. It was scarcely evidence of disreputable character apt to foot a chain of propensity reasoning. An assessment of prejudicial effect must also take into account the context in which the evidence was introduced. In this case, there was no controversy that the appellant unlawfully killed the deceased, thus reducing almost to a vanishing point the prospect of propensity-based reasoning.

The Ruling of the Trial Judge

[162] The trial judge admitted the evidence because she was satisfied that:

i. it was relevant to establish an animus and the intent of the appellant to kill his mother; and

ii. its probative value exceeded its prejudicial effect.

The Arguments on Appeal

[163] The appellant says that the trial judge made two errors in admitting this evidence. The first, in finding that the evidence was relevant to establish animus, motive or intent. And the second, assuming the evidence was relevant, in failing to exclude it on the ground that its prejudicial effect exceeded its probative value.

[164] The appellant contends that because Ms. Johnston could or did not hear the entirety of the outbursts, thus could not assist in fixing the context in which they occurred, the words cannot be said to be probative of any fact in issue. It follows, the appellant says, that the evidence should have been excluded as irrelevant.

[165] Even if the trial judge was not wrong to find the evidence was relevant, her balancing of probative value and prejudicial effect was flawed. She failed properly to recognize that this was evidence of disreputable conduct or character, which could generate forbidden propensity reasoning. This prospect was exacerbated when, contrary to the trial judge's ruling, Crown counsel introduced evidence about the deceased's gentle demeanour.

[166] The respondent takes issue with both claims of error advanced by the appellant.

[167] According to the respondent, Stephanie Johnston's evidence was relevant to establish the nature of the relationship between the parties, and in particular, to demonstrate animus, even motive, on the part of the appellant. Each in turn was relevant to establish the fact and legal character of the unlawful killing of the deceased.

[168] The respondent points out that the trial judge's balancing of probative value and prejudicial effect is entitled to significant deference in this court. Her assessment of each component, and her balancing of them, reflects no error in principle, misapprehension of the evidence or an unreasonable conclusion. The prejudicial effect of the evidence is negligible in the face of the appellant's own admissions to the police, and in his trial testimony, that he and his mother had had "some fights and stuff". There was no issue at trial that the appellant killed his mother and did so unlawfully, and little controversy about the unlawful killing amounting to murder. No harm. No foul.

[169] The respondent does acknowledge that the evidence Crown counsel adduced about the disposition of the deceased ought not to have admitted. After all, the trial judge had ruled it inadmissible. But in the end, the respondent says, the appellant suffered no prejudice by its introduction.

The Governing Principles

[170] Like many controversies about misreception of evidence in a criminal trial, some basic principles illuminate the path our analysis should follow.

[171] First, relevance.

[172] Relevance is not an inherent characteristic of any item of evidence proposed for admission in a criminal trial. Relevance exists as a relationship between the item of evidence tendered for reception and the proposition of fact it is offered to prove. Evidence is relevant if it is probative of the fact it is offered to prove according to everyday experience and common sense. An item of evidence is relevant if it renders the fact it seeks to establish slightly more (or less) probable than that fact would be without the evidence, through the application of everyday experience and common sense: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 204.

[173] We assess the relevance of items of evidence in the context of the entire case and the positions of counsel. Relevance does not exist in the abstract or in the air: Luciano, at para. 205; R. v. Cloutier, [1979] 2 S.C.R. 709, at pp. 730-732.

[174] In prosecutions for unlawful homicide, evidence is often adduced to establish the nature of the relationship between the accused and the deceased. Sometimes, evidence is proffered to establish animus or motive on the part of an accused to kill the deceased. Animus or motive is relevant to establish, not only an accused's participation in the unlawful killing of the deceased, but also the state of mind with which the unlawful killing was done.

[175] Animus or motive may be established in a variety of ways. By evidence of things done, of words spoken, or of some combination of both. But what is offered in evidence must be relevant to establish the animus or motive alleged.

[176] In R. v. Barbour, [1938] S.C.R. 465, the Supreme Court of Canada cautioned that it is not every item of evidence about a quarrel between an accused and a deceased that can establish feelings of hostility or malignity, thus animus or motive, to commit a crime. Transient ebullitions of annoyance and anger on the part of an accused, which pass away and lead to nothing, are not sufficient. We ought not slip into the habit of admitting evidence which, reasonably viewed, cannot tend to prove animus or motive or to explain the acts charged merely because it discloses some incident in the history of the relations of the parties: Barbour, at p. 469.

[177] Second, admissibility.

[178] Without more, the relevance of an item of evidence will not ensure its reception in a criminal trial. To be received, evidence that is both relevant and material, must not run afoul of any applicable admissibility rule. One such rule, at once an overarching principle of the law of evidence and a rule of admissibility for certain species of evidence, is that the probative value of the evidence must exceed its prejudicial effect. As an overarching principle, we sometimes see some overlap with the threshold requirement of relevance.

[179] Two decisions well illustrate the overlap between relevance and the admissibility rule which balances probative value and prejudicial effect. Apart from the use that was sought to be made of the evidence in proof of guilt, the circumstances revealed in these two authorities are similar to those in this case.

[180] In R. v. Ferris (1994), 1994 ABCA 20, 27 C.R. (4th) 141 (Alta. C.A.), the appellant was arrested for murder, advised of his Charter rights and lodged in a police cell. He asked to make a phone call to his father. An officer heard the appellant say "I've been arrested" and later, "I killed David". The officer heard conversation before, after and between the two sets of words he repeated, but could not hear, thus could not say what was said. The trial judge admitted the officer's evidence. The appellant was convicted and argued on appeal that the officer's evidence should not have been admitted.

[181] On appeal, a majority of the Alberta Court of Appeal concluded that the evidence should not have been admitted. The majority considered the evidence irrelevant:

The trial judge must be satisfied there is some evidence upon which a jury could conclude the meaning of the uttered words. On the evidence introduced at the voir dire it would be impossible for a properly instructed jury, acting reasonably, to come to a conclusion as to what these words meant on any standard of proof. A trier of fact could not ascertain the accused's meaning when he uttered the words. Certainly, it would be impossible to conclude they constituted an admission made by the accused. Therefore the words are not logically probative of a fact in issue, are not relevant, are inadmissible and should not have been left with the jury.

See, Ferris, at para. 30.

[182] The majority in Ferris went on to hold the evidence would also fall foul of the hearsay rule and could not survive application of the general discretion to exclude evidence the prejudicial effect of which exceeded its probative value: Ferris, at paras. 32 and 36.

[183] In R. v. Ferris (1994), 34 C.R. (4th) 26, the Supreme Court of Canada dismissed a further appeal, holding that the meaning of the words was so speculative and its probative value so tenuous that the evidence should have been excluded on the ground that its prejudicial effect overbore its probative value: Ferris, at para. 1.

[184] In R. v. Hunter (2001), 155 C.C.C. (3d) 225 (Ont. C.A.), the Crown adduced evidence from a passerby who claimed to have heard the appellant say to his lawyer in a courthouse corridor "I had a gun, but I didn't point it". The witness could provide no context for the utterance and acknowledged that there could have been more conversation before and after what he had heard.

[185] This court allowed Hunter's appeal explaining:

In my view, without the surrounding words, it would be impossible for a properly instructed jury to conclude that the overheard utterance was an admission or perhaps even what it meant. Clearly its meaning remains highly speculative. The trier of fact would have to guess at the words that came before and after to fix on a meaning. Since its meaning is highly speculative, its probative value is correspondingly tenuous. However, the substantial prejudicial effect is obvious. This balance clearly favours exclusion of the overheard utterance and, as in Ferris, that should have been the result.

See, Hunter, at para. 21.

[186] Third, appellate review of decisions balancing probative value and prejudicial effect.

[187] A trial judge's assessment of the balance between probative value and prejudicial effect is entitled to substantial deference on appeal in the absence of legal error, material misapprehension of the evidence or a conclusion that is plainly unreasonable: R. v. B. (C.R.), [1990] 1 S.C.R. 717, at pp. 733-734; R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at para. 93; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 31.

The Principles Applied

[188] As I will explain, although I have concluded that the trial judge erred in admitting the evidence of Stephanie Johnston, I am satisfied that, in the circumstances of this case, its admission did not result in any substantial wrong or miscarriage of justice.

[189] Turning first to the relevance and admissibility of this evidence.

[190] The Crown proffered the evidence of Stephanie Johnston about the raised male voice she had heard coming from the Zammit/Boukhalfa apartment intermittently over a decade to establish animus and motive on the part of the appellant. No one can gainsay that evidence of an accused's animus towards a deceased, or motive to kill the deceased, is relevant and material in prosecutions for unlawful homicide. Provided the evidence is compliant with any applicable admissibility rules, it may be received to establish an accused's participation in an unlawful killing or the state of mind with which the killing was carried out. This is so despite the fact that sometimes motive and animus are demonstrated by evidence of extrinsic misconduct.

[191] To establish animus or motive, a party such as the Crown, may rely on evidence from a variety of sources. But, whatever the source, the evidence tendered to establish animus or motive must be such to render the existence of the animus or motive slightly more probable than it would be without the evidence, according to everyday experience and common sense. In other words, the evidence tendered to establish animus or motive must be relevant to their proof.

[192] In this respect, we need recall the teachings of Barbour that the words or conduct relied upon, reasonably viewed, must be capable of establishing animus or motive, not merely be transient ebullitions of the annoyance and anger of an accused that come to naught. Further, we ought not slip into the habit of admitting evidence which, reasonably viewed, cannot tend to prove animus or motive or explain the acts charged, just because it discloses some conduct in the history of the relationship of the parties. We should also heed the lessons of Ferris and Hunter that context is critical to meaning and meaning to probative value.

[193] In this case, as the jury heard the evidence, Ms. Johnston could not recall the words she heard spoken or having told police that she heard "leave me alone". Thus, the jury was left with mere infrequent ebullitions uttered over a decade. Decreasing as time passed. None contemporaneous with relevant events. We know nothing of the context, thus cannot assign any meaning to determine their relevance to establish animus or motive. At the very least, even if they met the modest threshold for relevance, they should have been excluded because their prejudicial efficient, a product of their highly speculative meaning, outweighed their probative value.

[194] On the other hand, I am satisfied that introduction of this evidence caused no substantial wrong or miscarriage of justice. The appellant acknowledged his participation in the unlawful killing of his mother. He did not seriously contend that it was other than murder. He sought a verdict of manslaughter based on provocation, a statutory partial defence that only becomes engaged on proof of murder. This evidence did not occupy a place of prominence in the addresses of counsel or the trial judge's charge.

[195] In the result, I would reject this ground of appeal and dismiss the appeal from conviction.

THE APPEAL FROM SENTENCE

[196] The appellant appeals the period of parole ineligibility of fifteen years fixed by the trial judge.

[197] It is helpful to begin with a brief reference to some additional background relevant to a determination of the period of parole ineligibility, followed by a summary of the positions advanced by trial counsel and a snapshot of the trial judge's reasons for judgment.

The Background Facts

[198] In determining the period of parole ineligibility, the trial judge was required to take into account four factors:

i. the nature of the offence;

ii. the circumstances surrounding the commission of the offence;

iii. the character of the accused; and

iv. the parole eligibility recommendations of the jury.

Prior paragraphs of these reasons have adequately described the nature of the offence and the circumstances surrounding its commission. Nothing will be gained by their repetition. However, something should be recorded about the appellant's character and the jury's recommendations about parole eligibility.

The Character of the Appellant

[199] The appellant was 26 years old when he killed his mother and 30 years old when the trial judge sentenced him. He was not a first offender. As a youth, he had been found guilty of several drug offences. His record included convictions for carrying a concealed weapon and assault causing bodily harm arising out of a vicious attack on a woman he met for the first time after making her acquaintance online.

[200] When the appellant killed his mother, he was bound by a conditional sentence order and a weapons prohibition. The killing was his second breach of a conditional sentence order.

[201] The Catholic Children's Aid Society had intervened in the appellant's care over several years beginning in early childhood. The intervention included psychiatric assessment and prescription of anti-psychotic medication, but no firm diagnosis of a defined mental illness. During the assessment, the appellant was described as intelligent, but also egocentric, manipulative, aggressive and belligerent.

The Jury Recommendation

[202] After instructions on their task, five jurors made no recommendation about parole ineligibility. Three said 10 years. Two said 15. One juror recommended 20 years and another, 25.

The Positions of the Parties

[203] The trial Crown invited the trial judge to delay parole eligibility for 15 years. Defence counsel submitted that no enlargement of the period of parole ineligibility beyond the statutory minimum of 10 years was warranted.

The Reasons of the Trial Judge

[204] The trial judge delayed the appellant's eligibility for parole consideration until he had served 15 years of his life sentence. She considered that the offence reflected a profound breach of trust. It involved the use of multiple weapons and the infliction of gratuitous and excessive violence. The trial judge took into account that the appellant had twice breached a conditional sentence order, and killed his mother when he was bound not only by one of the conditional sentence orders, but also by a weapons prohibition. These circumstances led the trial judge to conclude that the objective of rehabilitation had to take a backseat to deterrence and denunciation.

[205] The trial judge considered that the only mitigating factors were the appellant's age and the support he received from his extended family. She accepted the submission that the appropriate range of parole ineligibility for cases such as this was between 12 and 17 years and settled on 15 years as fit for the appellant and for his offence.

The Arguments on Appeal

[206] The appellant contends that the trial judge erred in holding that the verdict of the jury meant that they had rejected provocation. The appellant says that the jury could have accepted the appellant's version of events, but simply not have had a reasonable doubt that it reduced murder to manslaughter as an intent-inhibiting factor or as a statutory partial defence. The appellant also argues that the trial judge erred in finding that the murder was unexplained. After all, the appellant testified that he "snapped" when confronted with the knife in his mother's hand.

[207] The appellant says that the period of parole ineligibility fixed by the trial judge is harsh and excessive because it fails to take into account not only the appellant's mental health problems, but also the fact that he had never been violent with his mother on any previous occasion.

[208] The respondent characterizes the period of parole ineligibility set by the trial judge as entirely fit. The appellant, with a record including offences of threatened and actual violence and bound by the terms of a conditional sentence order, engaged in a prolonged attack on his mother. He used knives and a baseball bat, striking multiple blows against an older, physically inferior victim. The jury rejected what he claimed as provocation in both its aspects. The record is barren of any confirmed mental illness to account, in whole or in part, for what happened. No meaningful mitigating factors are present.

The Governing Principles

[209] As a general rule, the period of parole ineligibility imposed on conviction of second degree murders is ten years. However, this period can be ousted if the trial judge decides that, according to the statutory criteria, the accused should wait a longer period before his or her suitability for release into the public is assessed: R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 27.

[210] Appellate courts may not intervene lightly when a sentence, including a period of enhanced parole ineligibility, is challenged on appeal. Trial judges have a broad discretion to impose a sentence, including a period of parole ineligibility, within the limits imposed by law. Variations on appellate review should be confined to cases where the appellate court is satisfied that the sentence is not fit, that is to say, clearly unreasonable: Shropshire, at para. 46; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 39.

[211] To justify appellate intervention, an appellant must demonstrate that the sentencing judge:

i. erred in principle;

ii. failed to consider a relevant factor; or

iii. erred in considering an aggravating or mitigating factor

and that error had an impact on the sentence imposed: Lacasse, at para. 44.

The Principles Applied

[212] As I will briefly explain, I would not interfere with the period of parole ineligibility fixed by the trial judge. I am simply not persuaded that she erred in principle, failed to consider a relevant factor, or made a mistake in her consideration and evaluation of the influence of aggravating and mitigating factors.

[213] To begin, since the determination of guilt was expressed in the verdict of a jury, s. 724(2) of the Criminal Code required the trial judge to accept as proven all facts, express or implied, essential to that verdict. The subsection also permitted the trial judge to find "any other relevant fact disclosed by evidence at the trial". The appellant advanced the statutory partial defence of provocation on which the trial judge instructed the jury. The trial judge also left evidence of provoking words and conduct as an item of evidence relevant for the jury to consider in deciding whether the Crown had proven the mental or fault element necessary to make the unlawful killing murder.

[214] The jury found the appellant guilty of second degree murder. Of necessity, this verdict entailed two findings of fact by the jury. The jury was satisfied beyond a reasonable doubt that the appellant had a state of mind described in s. 229 (a) of the Criminal Code when he unlawfully killed the deceased, a state of mind not diminished by any provoking words or conduct on the part of the deceased. Further, the jury was satisfied beyond a reasonable doubt that the appellant was not acting under the statutory partial defence of provocation. It follows that the trial judge's findings of fact in this respect are solidly rooted in the evidence adduced at trial and the jury's verdict.

[215] Second, fixing a period of parole ineligibility upon conviction of second degree murder is part of the sentencing of a convicted offender. It follows that the various sentencing objectives, such as deterrence and denunciation; principles, such as proportionality; and aggravating and mitigating factors, such as breach of trust and commission of the offence while subject to a conditional sentence order were proper considerations in determining the period of parole ineligibility.

[216] Third, short of being unreasonable or contaminated by improper considerations, the period of parole ineligibility fixed by the trial judge is entitled to significant deference in this court.

[217] For these reasons, I would dismiss the appeal from sentence.

CONCLUSION

[218] I would dismiss the appeals from conviction and sentence.

Released: "KF" August 21, 2017

"David Watt J.A."

"I agree. K. Feldman J.A."

"I agree. Grant Huscroft J.A."

Footnote:

[1] In his factum, the appellant also challenged the trial judge's instructions on evidence of post-offence conduct. He did not pursue that ground in oral argument and I shall say nothing more about it.