Her Majesty the Queen v. Forcillo

[Indexed as: R. v. Forcillo]

Ontario Reports

Court of Appeal for Ontario

Strathy C.J.O., Doherty and Trotter JJ.A.

April 30, 2018

141 O.R. (3d) 752 | 2018 ONCA 402

Case Summary

Charter of Rights and Freedoms — Cruel and unusual treatment or punishment — Mandatory minimum sentence

Accused police officer firing fatal volley of shots at knife-wielding victim who was standing alone in streetcar and then firing second volley as victim lay dying on floor. Accused convicted of attempted murder on basis of second volley of shots. Mandatory minimum five-year sentence under s. 239(1)(a)(i) of Code for committing attempted murder while using restricted or prohibited firearm and mandatory minimum four-year sentence in s. 239(1)(a.1) for attempted murder with any other type of firearm not being grossly disproportionate in accused's circumstances or in reasonable hypothetical circumstances. Mandatory minimum sentences not violating s. 12 of Charter. Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c. C-46, s. 239(1)(a)(i), (a.1).

Charter of Rights and Freedoms — Fundamental justice — Overbreadth

Provisions of Criminal Code which mandate minimum sentence of five years for attempted murder while using restricted or prohibited firearm and four years for attempted murder while using any other type of firearm not being overbroad due to their application to police officers who use excessive force in line of duty.

Criminal law — Appeal — Fresh evidence on appeal — Criteria for admission

Accused police officer firing fatal volley of shots at knife-wielding victim who was standing alone in streetcar and then firing second volley as victim lay dying on floor. Accused convicted of attempted murder based on second volley. Defence adducing evidence at trial concerning impact of high-stress, life-threatening situations on perception and cognition. Accused's application to adduce fresh evidence on that issue on appeal being dismissed as evidence could not reasonably be expected to have affected result at trial.

Criminal law — Appeal — Fresh evidence on appeal — Leave to bring application

Party in criminal proceedings not required to obtain leave to bring application to adduce fresh evidence on appeal.

Criminal law — Attempted murder — Sentence

Accused police officer firing fatal volley of shots at knife-wielding victim who was standing alone in streetcar and then firing second volley as victim lay dying on floor. Accused convicted of attempted murder on basis of second volley of shots. Sentence of six years' imprisonment affirmed on appeal. Trial judge not erring in finding that accused's moral blameworthiness was high. Use of lethal weapon against person who did not pose imminent threat amounting to egregious breach of trust.

Criminal law — Evidence — State of mind

Accused police officer firing fatal volley of shots at knife-wielding victim who was standing alone in streetcar and then firing second volley as victim lay dying on floor. Accused convicted of attempted murder on basis of second volley of shots. Trial judge not erring in excluding evidence which allegedly suggested that victim was suicidal and that he provoked confrontation to bring about his own death. That evidence being irrelevant to accused's apprehension of risk as accused was unaware of victim's state of mind.

Criminal law — Trial — Verdict — Inconsistent verdicts

Victim refusing to drop knife while standing alone in streetcar and moving towards door. Accused police officer firing one volley of shots which brought fatally wounded victim to floor of streetcar. Accused firing second volley 5.5 seconds later while victim was lying flat on his back. Verdicts of not guilty of second degree murder and guilty of attempted murder not inconsistent. Properly instructed jury could reasonably draw distinction between circumstances surrounding first and second volley and find that Crown had failed to prove beyond reasonable doubt that first volley was not justified but had proved beyond reasonable doubt that second volley was not justified. Accused not prejudiced by Crown's decision to include both counts in indictment.

Facts

The accused police officer was charged with second degree murder and attempted murder. He responded to a priority call about a man with a knife on a streetcar. By the time the accused arrived and took up position about ten feet from the door of the streetcar, the knife-wielding man, Sammy Yatim, was alone in the streetcar. Yatim ignored the accused's orders to drop the knife, and instead uttered obscenities at the accused and moved towards the doorway. The accused fired a volley of shots at Yatim, fatally injuring him. Yatim fell to the floor of the streetcar. Lying on his back, he retrieved his knife. The accused fired a second volley of shots 5.5 seconds after the first volley. Five of the six bullets struck Yatim. The medical experts could not say that any of those shots accelerated Yatim's death.

At trial, the accused claimed that the shooting was justified either under s. 25 of the Criminal Code (lawful use of force) or s. 34 (self-defence). He testified that he fired the second volley because Yatim began to get up from the floor, lifting his torso to a 45-degree angle from the floor. Surveillance video showed that Yatim, who was partially paralyzed and on the verge of death as a result of the first volley of shots, never moved from the floor.

The jury found the accused not guilty of second degree murder and guilty of attempted murder. The accused sought a conditional sentence. Because of the mandatory minimum sentences of five years under s. 239(1)(a)(i) of the Code for attempted murder while using a restricted or prohibited firearm and four years under s. 239(1)(a.1) for attempted murder while using any other type of firearm, a conditional sentence was not available.

The accused challenged the constitutionality of those mandatory minimum sentences, arguing that they violated s. 7 and s. 12 of the Canadian Charter of Rights and Freedoms. The trial judge rejected the Charter challenge and sentenced the accused to six years' imprisonment. The accused appealed his conviction and sentence, and applied to adduce fresh evidence on appeal.

Held

The application to adduce fresh evidence and the appeal should be dismissed.

I. Overview

A. Overview

[1] Shortly before midnight on July 27, 2013, the appellant, a Toronto police officer, and his partner responded to a report that a young man was wielding a knife on a crowded streetcar. That young man was Sammy Yatim.

[2] When the appellant and his partner arrived at the scene, the appellant took up a position on the street directly outside of the streetcar door. He drew his firearm. Mr. Yatim was standing alone inside the streetcar holding a knife. The appellant told Mr. Yatim to drop the knife several times. Mr. Yatim ignored these demands and uttered obscenities at the appellant. Mr. Yatim moved toward the appellant. The appellant opened fire. He fired three shots in rapid succession. Mr. Yatim fell to the streetcar floor, fatally wounded. Five and one-half seconds later, the appellant opened fire a second time, firing six bullets at Mr. Yatim as he lay on the floor.

[3] The medical evidence established that one of the shots fired in the first volley struck Mr. Yatim in the heart. That shot was fatal. Mr. Yatim was dying, but he was not dead before the second volley of shots hit him. The medical experts could not say that any of the shots from the second volley accelerated Mr. Yatim's death. In other words, the shots fired in the second volley were not legally causally connected to Mr. Yatim's death. His death was caused exclusively by a shot fired in the first volley.

[4] The appellant testified and acknowledged that he shot and killed Mr. Yatim. He claimed that the shooting was justified under either s. 25 (lawful use of force) or s. 34 (self-defence) of the Criminal Code, R.S.C. 1985, c. C-46.

[5] The Crown preferred a two-count indictment. The first count alleged second degree murder. The Crown argued that when the appellant fired the first volley of shots, including the shot that caused Mr. Yatim's death, he had the intent required for murder under s. 229(a) of the Criminal Code and his conduct could not be justified under s. 25 or s. 34.

[6] Count two alleged attempted murder. This count focused on the second volley of shots. The Crown argued that when the appellant opened fire the second time, he intended to kill Mr. Yatim and his actions could not be justified under s. 25 or s. 34. The Crown maintained that the appellant was guilty of attempted murder because, although Mr. Yatim was alive, the medical evidence could not establish a connection between the second volley of shots and the cause of Mr. Yatim's death. The Crown reasoned that as the shots in the second volley had no causal connection to Mr. Yatim's death, the appellant could not be convicted of murder based on the second volley. The absence of any causal connection did not, however, preclude a conviction on the charge of attempted murder as long as the appellant believed Mr. Yatim was alive.

[7] The trial was hard fought. The jury returned verdicts of not guilty of second degree murder on count one, and guilty of attempted murder on count two. The verdicts indicate that the Crown had failed to prove beyond a reasonable doubt that the first volley of shots was not justified under either s. 25 or s. 34, but had proved beyond a reasonable doubt that neither defence applied in respect of the second volley of shots.

[8] The combination of verdicts returned by the jury presents an unusual, if not unique, result. The appellant stands acquitted of murdering Mr. Yatim and he stands convicted of attempting to murder Mr. Yatim, some 5.5 seconds later. In effect, the appellant has been convicted of attempting to murder the very same person he was found to have justifiably fatally shot just 5.5 seconds earlier.

B. The Appeals

[9] The appellant appeals from the conviction on the attempted murder charge. There is no appeal from the acquittal on the murder charge. The appellant also seeks leave to appeal from the six-year sentence that the trial judge imposed on the attempted murder conviction.

[10] The conviction appeal has two parts. One part, based on the trial record, focuses primarily on the propriety of the Crown preferring a separate count charging attempted murder in relation to the second volley of shots. To quote the appellant's factum:

At the Crown's urging, and over the objection of the appellant, the trial judge instructed the jury to consider the single shooting transaction as two discrete events and to determine the appellant's culpability separately for each. One of the fundamental questions on this appeal is whether such a state of affairs is logically perverse and legally impermissible.

[11] The appellant also submits that the trial judge improperly excluded certain evidence said to be relevant to Mr. Yatim's state of mind at the time of the confrontation with the appellant.

[12] The second part of the conviction appeal arises out of the appellant's motion to adduce fresh evidence on appeal from two experts relating to the impact of high-stress, life-threatening situations on perception and cognition. What the appellant saw and what he believed he saw before he fired the second volley of shots were crucial factual issues in relation to count two. The expert evidence offered for the first time on appeal is said to add important evidence on that issue.

[13] The sentence appeal addresses the constitutionality of the four- and five-year minimum sentences imposed on persons who commit attempted murder with a firearm, and the fitness of the six-year sentence ultimately imposed upon the appellant.

C. The Facts

[14] The evidence at trial was lengthy, but it is unnecessary for the purposes of this appeal to review most of that evidence in detail.

[15] Just before midnight, Mr. Yatim boarded a streetcar heading west on Dundas Street in Toronto. He had consumed ecstasy. Not long after Mr. Yatim got on the streetcar, he exposed his genitals to other passengers. A short time later, he got up from his seat brandishing a knife. Mr. Yatim made a sweeping gesture with the knife near a young woman's neck. She screamed and moved toward the front of the streetcar away from Mr. Yatim. Other occupants in the streetcar quickly did the same thing. Mr. Yatim followed the crowd of passengers, moving toward the front of the streetcar, still brandishing the knife with his genitals exposed. The passengers were terrified.

[16] The driver stopped the streetcar. The other occupants exited through the front door, leaving only Mr. Yatim and the driver on the streetcar. The driver spoke to Mr. Yatim, who mumbled obscenities and threats. He said he wanted to call his father. When Mr. Yatim saw the police car approaching, he screamed various obscenities and moved threateningly in the direction of the driver. The driver got up and quickly exited the streetcar through the front door, leaving Mr. Yatim alone, standing near the front door of the streetcar.

[17] The appellant and his partner were in their patrol car when they received a priority call indicating that there was a person with a knife on a streetcar. They arrived at the scene before any other police personnel. They approached the streetcar on foot. The appellant saw Mr. Yatim with a knife. He drew his firearm and stood on the street directly in front of the streetcar door, about ten feet away, placing himself between the appellant and bystanders on the street.

[18] The appellant told Mr. Yatim to drop the knife several times. Mr. Yatim refused to drop the knife and uttered obscenities. Another officer, Officer Kim, stood beside the appellant with his weapon drawn and pointed at Mr. Yatim. The appellant told his partner to call for a taser. He thought that Mr. Yatim could be high on drugs.

[19] The appellant repeatedly screamed at Mr. Yatim to drop the knife and Mr. Yatim continued to refuse to do so, responding with mocking profanities. Mr. Yatim stepped back a few feet away from the top of the stairs leading to the streetcar door. The appellant said, "If you take one step closer I will shoot you, I'm telling you right now."

[20] A few seconds later, Mr. Yatim stepped toward the doorway of the streetcar in the appellant's direction. He had the knife in his right hand. Before Mr. Yatim reached the streetcar steps, the appellant opened fire, firing three hollow point bullets in two seconds.

[21] All three bullets hit Mr. Yatim. One bullet struck his heart, one severed his spine, paralyzing him from the waist down, and one hit him in the upper right arm, shattering his arm. The appellant fired this volley of shots about 45 seconds after he arrived on the scene.

[22] The appellant testified that immediately before Mr. Yatim started to move toward him, he saw Mr. Yatim take a deep breath as if he was making a decision. Mr. Yatim's eyes opened wide and his jaw clenched. He flicked the knife at the appellant. The appellant testified that he believed that Mr. Yatim was going to attack him and that he needed to use lethal force to stop him. When Mr. Yatim did not stop in response to the appellant's demands and did not drop the knife, the appellant opened fire.

[23] Mr. Yatim fell backward on to the streetcar floor, fatally wounded. He was lying on his back and somewhat on his right side. As he lay there, he retrieved the knife in his right hand and using his left hand, pulled his shattered right arm across his body onto his chest. He held the knife on his chest using both hands. Mr. Yatim's legs were pulled up in a stacked position.

[24] The appellant testified that after he shot Mr. Yatim, and Mr. Yatim was lying on the floor, he immediately reassessed the danger that Mr. Yatim posed to him. The appellant had been trained to make these constant reassessments in such circumstances. He knew he had shot Mr. Yatim. He did not say anything to Mr. Yatim.

[25] The appellant testified that Mr. Yatim began to get up from the floor, lifting his torso to a 45-degree angle from the floor. He believed that Mr. Yatim, still armed with a knife, was about to renew his attack. The appellant aimed at Mr. Yatim's centre mass and opened fire. He fired six shots. He fired this volley somewhat more deliberately than the first round. Five of the six bullets struck Mr. Yatim.

[26] The encounter between Mr. Yatim and the appellant was captured on the streetcar video and audio surveillance. That surveillance showed, contrary to the appellant's evidence, that after Mr. Yatim fell to the floor having been struck by the first volley of shots, his torso never moved from the floor. He was partially paralyzed, on the verge of death and did not move from the floor.

[27] The appellant testified that he knew that Mr. Yatim could not hurt him while he was lying on the floor. He also acknowledged that he would not have fired the second volley had he appreciated, as the video showed, that Mr. Yatim remained on the floor and did not start to get up.

[28] Another officer arrived at the streetcar door with a taser shortly after the appellant fired the second volley. The officer boarded the streetcar. He saw Mr. Yatim still clutching the knife in his hand. He ordered Mr. Yatim to drop the knife and when he did not, the officer tasered Mr. Yatim. According to the medical evidence, Mr. Yatim was likely dead before he was tasered.

D. The Positions at Trial

[29] The trial turned on whether the Crown could prove beyond a reasonable doubt that the shots the appellant fired were not justified, either under s. 25 (protection of persons administering or enforcing the law) or s. 34 of the Criminal Code (self-defence). For our purposes, it is unnecessary to distinguish between the two provisions. The appellant does not allege any misdirection or non-direction with respect to the essential elements of either defence. Both defences turned on whether the Crown could prove beyond a reasonable doubt that the appellant did not reasonably perceive that Mr. Yatim posed an imminent threat to him, justifying the use of lethal force.

[30] The trial judge instructed the jury that they should consider the justification defences as applied to the first volley of shots in considering their verdict on count one and as they applied to the second volley of shots in considering their verdict on count two. The verdicts indicate that the jury reached different conclusions on the availability of the defences as they applied to each volley of shots.

[31] The appellant's contention that he was justified in firing both volleys rested largely on his own testimony. In respect of the first volley, the appellant testified that Mr. Yatim, who was acting very erratically and aggressively, had ignored the appellant's repeated strong demands that he drop the knife. Instead, Mr. Yatim had moved toward the appellant in a menacing manner, flicking the knife in his direction. The appellant was about ten feet away from Mr. Yatim. He testified that he believed, based on his observations at the moment before he fired the first volley, that Mr. Yatim posed an imminent threat of serious bodily harm to him. He fired the first volley in the face of that imminent threat.

[32] In respect of the second volley, two features of the appellant's testimony are significant. First, he acknowledged that, as he had been trained to do, he continually reassessed the danger that Mr. Yatim posed as the confrontation evolved. The appellant realized that at least one bullet from the first volley hit Mr. Yatim and knocked him to the floor. According to the appellant, in the 5.5 seconds between the first and second volleys, he continued to reassess the threat that Mr. Yatim posed.

[33] Second, the appellant testified that as he looked at Mr. Yatim lying on the streetcar floor, he believed he saw Mr. Yatim begin to get up. This action, combined with Mr. Yatim's continued possession of the knife, led the appellant to fear for his safety:

Mr. Yatim, had rearmed himself with the knife, was in the process of getting up with this knife to continue his knife attack. At that point, I felt the appropriate use of force response was my firearm.

[34] The appellant's belief that Mr. Yatim was getting up from the floor was one of the two things that caused him to conclude that Mr. Yatim was about to continue the attack. That belief played a central role in the appellant's testimony in support of his claim that the second volley was justified.

[35] The streetcar surveillance video established that after Mr. Yatim fell to the ground, having been struck in the first volley, his back remained on the floor. The defence accepted that the video surveillance was accurate, but argued that the appellant was entitled to rely on his mistaken perception.

[36] In an effort to show that the appellant could have reasonably, but mistakenly, perceived Mr. Yatim to be getting up from the floor, the defence called the expert evidence of Dr. Laurence Miller, a forensic psychologist. He testified that individuals placed in very dangerous circumstances sometimes experience perceptual and cognitive distortions due to the body's physiological stress response. Dr. Miller acknowledged that police training could help an officer cope with or compensate for stress-related changes. He further testified, however, that training was necessarily limited as it could not predict every dangerous scenario police officers may encounter.

[37] It is unnecessary to review Dr. Miller's evidence in detail at this stage. The proposed fresh evidence addresses the potential impact of the human stress response on perception and cognition. Dr. Miller's evidence will be referred to in more detail when examining the admissibility of the evidence offered on appeal.

E. Grounds of Appeal

(1) Can the conviction for attempted murder stand?

[38] The appellant submits that the conviction on the charge of attempted murder on count two cannot stand beside the acquittal on the murder charge in count one. The appellant describes the conviction for attempted murder as inconsistent with the acquittal on the murder charge and unreasonable on the totality of the evidence. The appellant submits that the Crown, by laying separate counts of murder and attempted murder, improperly parsed the killing of Mr. Yatim into two discrete events to be considered in isolation from each other. In doing so, the appellant contends that the Crown invited the jury to reach a compromise verdict that defied common sense and ignored the reality of the circumstances in which the appellant shot and killed Mr. Yatim.

[39] The appellant argues that the trial judge should have taken count two away from the jury, or alternatively instructed the jury that they could consider count two only if satisfied beyond a reasonable doubt that the second volley of shots constituted a "discrete transaction" and was not part of the same transaction as the first volley of shots.

[40] The arguments of counsel for both parties covered a broad range and a variety of hypotheticals. In our view, this ground of appeal comes down to a single question:

Was there a basis in the evidence upon which a properly instructed jury could reasonably draw distinctions between the circumstances in which the first volley was fired and the circumstances in which the second volley was fired so as to warrant a finding that the Crown had failed to prove beyond a reasonable doubt that the first volley was not justified, but had proved beyond a reasonable doubt that the second volley was not justified?

If that basis existed in the evidence, the jury was entitled to draw the distinction it did as to the applicability of the justification defences and return the different verdicts it returned.

[41] In posing the question as we do, we do not suggest that the jury was required to look at the circumstances pertaining to the second volley without regard to the preceding circumstances, including the firing of the first volley. Nor did the trial judge so instruct the jury. The events leading up to the second volley, including the first volley, were an important part of the circumstances that the jury had to consider in deciding whether the Crown had proved beyond a reasonable doubt that the second volley was not justified.

[42] Having reviewed the evidence, we accept the Crown's submissions that the evidence was reasonably open to the interpretation that the circumstances pertaining to the first and second volleys were significantly different, and that those differences left it reasonably open to the jury to come to different conclusions as to the availability of the justification defences as applied to each volley.

[43] On the evidence, the appellant fired the first volley as an obviously distraught and non-compliant Mr. Yatim stepped toward him armed with a knife that he flicked in a menacing manner. Mr. Yatim did not stop, despite the repeated demands from the appellant. These circumstances provided a basis for a reasonable doubt as to whether the use of deadly force was justified. The jury had at least such a reasonable doubt and acquitted on count one.

[44] The second volley was fired 5.5 seconds later when, on the appellant's own evidence, he realized that he had shot Mr. Yatim and Mr. Yatim was lying on the streetcar floor. He was holding the knife on his chest with both hands. While the appellant maintained that he believed Mr. Yatim was in the act of rising from the floor when he opened fire, surveillance video contradicted that belief.

[45] There were obvious differences between the circumstances as they existed when the appellant fired the first volley and the circumstances as they existed when he fired the second volley. Those differences could reasonably have led the jury to come to different conclusions as to what the appellant perceived when he opened fire.

[46] The jury was entitled to reject the appellant's evidence that he thought Mr. Yatim was getting up when he fired six shots at Mr. Yatim from ten feet away. If the jury rejected that evidence and instead concluded that when the appellant opened fire, he saw Mr. Yatim lying on his back on the streetcar floor, just as the video surveillance showed, the jury would have little difficulty concluding that Mr. Yatim posed no imminent threat to the appellant and the appellant knew it. If the jury came to those factual conclusions, the appellant's justification defences could not succeed on count two.

[47] The appellant was not prejudiced in the conduct of his defence by the inclusion of two counts in the indictment, one of which referred to the second volley. The Crown made it clear from the outset that count one related to the first volley and count two related to the second volley. The inclusion of a separate count in relation to the second volley promoted trial fairness and the appellant's ability to effectively present his defence, by making the Crown's position and its theory of liability crystal clear from the outset of the trial.

[48] Not only did the inclusion of two counts in the indictment, and the Crown's theory with respect to liability for those two counts, not prejudice the appellant in his defence, they were consistent with the appellant's own evidence. The appellant did not testify that the second volley was a continuation of the first based on the continuation of the threat as he perceived it when he fired the first volley. Rather, he testified that the circumstances had changed after he fired the first volley. Mr. Yatim had been hit and was lying on the ground. The appellant testified that, as he had been trained to do, he reassessed the situation in the 5.5 seconds between the two volleys. On his evidence, it was Mr. Yatim's retrieval of the knife, combined with his getting up from the floor, that caused the appellant to conclude that he was, once again, in imminent danger and justified in using lethal force a second time. The appellant's own evidence was consistent with the Crown's approach to the encounter between him and Mr. Yatim on the streetcar.

[49] Nor do we accept that the jury should have been told they could convict on count two only if satisfied beyond a reasonable doubt that the second volley of shots was a "discrete transaction" from the first. The jury had two counts to consider. The characterization of conduct as involving one or more transactions is primarily a distinction drawn for the purposes of determining whether a charge as framed by the Crown conforms with the pleading requirement in s. 581 and s. 589 of the Criminal Code. There is no pleadings rule that one transaction cannot give rise to more than one charge. The characterization of two volleys as one or two transactions was irrelevant to the jury's determination of whether the Crown had proved the allegation in either or both counts in the indictment beyond a reasonable doubt.

[50] The trial judge told the jury that evidence relevant to the justification claim as it applied to the second volley included the events surrounding the first volley. He referred to the defence evidence of "priming". Stripped to its essentials, that evidence indicated that the appellant's perceptions when he fired the second volley could be heavily influenced by the very dangerous encounter he had with the appellant only seconds before he fired the second volley. That evidence could support the defence claim that the appellant's perception that he was in imminent danger of serious harm when he fired the first volley impacted on his perceptions when he fired the second volley.

[51] It was important that the jury understand the potential relationship between the circumstances surrounding the first volley and the justification defence as it related to the second volley. The jury could, however, make that connection and properly assess the evidence relating to the first volley without concerning itself as to whether the two volleys constituted one or two transactions.

[52] In summary, we find no error or prejudice in the Crown's decision to prefer both counts in the indictment. The verdicts on the counts are neither unreasonable, nor inconsistent. The trial judge's instructions on the relationship between the events leading up to the first volley and the appellant's apprehension of imminent harm when he fired the second volley were accurate and fair. We reject the arguments put forward under this ground of appeal.

(2) Did the trial judge err in excluding evidence relevant to Mr. Yatim's state of mind?

(i) The evidence at trial

[53] The defence sought to introduce evidence as to Mr. Yatim's state of mind at the time of his confrontation with the appellant. The defence maintained that the evidence would support a finding that Mr. Yatim, who was by all accounts a troubled young man that evening, had decided to kill himself by provoking a confrontation with the police in which the police would be forced to kill him. According to the defence, this was a case of "suicide by cop".

[54] The evidence offered by the defence to support this position came from two sources. First, the defence offered text messages sent and Google searches conducted by Mr. Yatim in the days, weeks and months before his death, which the defence claimed showed that Mr. Yatim's life was falling apart on many levels. He was suicidal and had accessed information about suicide on at least one occasion. The defence argued that the text messages and Google searches, considered as a whole, painted a picture consistent with a person who had decided to precipitate a deadly confrontation with the police.

[55] The appellant had no knowledge of Mr. Yatim's text messages or Google searches. There is no suggestion that he had any reason to think that Mr. Yatim had decided to commit "suicide by cop".

[56] The second source of evidence said to support the "suicide by cop" theory came from Dr. Richard Parent, a criminologist who was offered as an expert in the phenomenon. Dr. Parent opined, on the basis of the information provided to him concerning the actual confrontation between the appellant and Mr. Yatim as well as the information relevant to Mr. Yatim's background, that Mr. Yatim was most likely engaged in aggressive and provocative conduct toward the police in the hope that it would provoke the police into shooting him.

(ii) The trial judge's ruling

[57] In his reasons, the trial judge outlined several reasons for refusing to admit the evidence of the contents of Mr. Yatim's cellphone and his Google searches. First, the trial judge concluded that the evidence did not provide a basis upon which any reasonable inferences could be drawn concerning Mr. Yatim's state of mind at the time of the confrontation. In the trial judge's view, any conclusions drawn from this material about Mr. Yatim's state of mind would be speculative.

[58] Next, the trial judge observed that the entirety of Mr. Yatim's conduct was apparent from the surveillance video. In his view, there was no need to resort to speculative inferences drawn from Mr. Yatim's state of mind to determine what had happened between Mr. Yatim and the appellant. What did or did not happen was plain to see on the surveillance video.

[59] Finally, the trial judge rejected the contention that the evidence could inform the appellant's state of mind and, in particular, whether he reasonably perceived himself to be in imminent danger. The trial judge observed:

The perception of the accused in this case that he was under imminent attack by the deceased relates to his perception of the deceased's conduct, not to the deceased's state of mind or past conduct of which he knows nothing in circumstances where the conduct at the time of the shooting is both video and audio taped.

[60] The trial judge rejected Dr. Parent's evidence because, like the evidence of the text messages and Google searches, it was entirely redundant as evidence of what Mr. Yatim did or did not do, in the face of the surveillance video.

[61] The trial judge also rejected Dr. Parent's evidence as not the proper subject matter of expert testimony. Lastly, the trial judge expressed concerns about the threshold reliability of Dr. Parent's evidence.

[62] For the most part, the trial judge did not draw a distinction for admissibility purposes between the two counts in the indictment. However, near the end of his reasons, he focused on the attempted murder count. In holding that the evidence could not assist in determining what Mr. Yatim did or did not do prior to the second volley, the trial judge observed:

This is particularly germane to the second volley of shots as the videotapes indicate the deceased remained on his back as a result of the first volley of shots while the accused's evidence was that he shot at the deceased six times because he only perceived the deceased to be an immediate threat because he rose to a 45 degree angle in order to renew his attack. With respect to the accused's second volley, the accused's defence is based on mistake of fact and accordingly, the state of mind of the deceased has no relevance to the resolution of count two on any basis.

(iii) Analysis

[63] The trial judge's reasons are persuasive. The evidentiary problem presented in this court is, however, simpler than that faced by the trial judge. As the appellant was acquitted on the murder charge, this court is concerned only with the admissibility of the evidence on the attempted murder charge. The evidence had no relevance to that charge.

[64] Even assuming, for the purpose of considering this argument, that Mr. Yatim had decided to provoke a confrontation with the police to bring about his own death, there is no evidence to suggest that the appellant knew that to be Mr. Yatim's state of mind. As the appellant had no knowledge of Mr. Yatim's state of mind, Mr. Yatim's state of mind could not possibly impact on either the appellant's apprehension of the risk that Mr. Yatim posed to him, or the appellant's belief that he had to use lethal force to defend himself.

[65] Evidence of Mr. Yatim's state of mind was equally unhelpful as circumstantial evidence of what Mr. Yatim did or did not do after he was hit by the first volley, and before he was hit by the second. There is no dispute about what Mr. Yatim did. His actions are caught by surveillance. Even assuming Mr. Yatim wanted more than anything to get up to provoke a further confrontation so that the police would kill him, the surveillance evidence makes it absolutely clear that he did not do so. Evidence that Mr. Yatim wanted to get up could have no value as circumstantial evidence of what he did between the two volleys.

[66] In oral argument, when pressed as to the relevance of Mr. Yatim's state of mind on the attempted murder charge, counsel submitted that the evidence that Mr. Yatim wanted to provoke the police into shooting him made the appellant's evidence that he believed, albeit mistakenly, that Mr. Yatim had started to get up from the streetcar floor, more credible. With respect, we see no connection between the credibility of the appellant's evidence about what he thought he saw and evidence of what was in Mr. Yatim's mind. One has nothing to do with the other, unless the appellant had knowledge of Mr. Yatim's state of mind.

[67] The appellant also advanced an alternative argument in favour of admitting the evidence of Mr. Yatim's state of mind. He submitted that the evidence was admissible to rebut the Crown's evidence depicting Mr. Yatim as a troubled, but not aggressive, young man who was obviously in a state of crisis on the streetcar.

[68] The Crown's evidence referred to by the appellant was part of the narrative describing the events leading up to Mr. Yatim's confrontation with the appellant. Both the Crown and the defence elicited a great deal of evidence about Mr. Yatim's conduct on the streetcar. Both urged the jury to come to different conclusions about the nature of that conduct.

[69] We agree with the trial judge that no purpose would be served by expanding the evidence to include Mr. Yatim's text messages and Google searches. The jury had a full picture of Mr. Yatim's conduct from shortly before he boarded the streetcar until his death. As the jury's acquittal on count one demonstrates, there was no risk that the jury had a one-sided misleading picture of Mr. Yatim as a non-aggressive individual who posed no risk to the appellant when they first confronted each other.

[70] We are satisfied that Mr. Yatim's state of mind at the time of the initial confrontation with the appellant had no relevance to either what Mr. Yatim did or to the appellant's belief of what Mr. Yatim did between the first and second volleys. This ground of appeal fails.

F. The Fresh Evidence

[71] The appellant applies to adduce fresh evidence on this appeal. The evidence consists of two brief reports, each written by a psychologist -- Dr. Judith P. Andersen and Dr. William R. Lovallo. The appellant seeks to admit these reports to add to the evidence of its own expert at trial, Dr. Laurence Miller, who gave opinion evidence concerning the impact of high-stress, life-threatening situations on perception and cognition.

[72] The appellant brought this application after the appeal was already perfected and listed for hearing. Given this timing, the Crown brought a pre-hearing motion, in writing, arguing that the appellant required leave to introduce the fresh evidence, and that leave should be denied because the application demonstrated no real merit and there was "no good explanation for the late filing of the application". The panel rejected the Crown's request and decided to hear the application on the merits, in the normal course. However, because the Crown was not in a position to respond to the application by the hearing date, all grounds of appeal except the fresh evidence application were argued at the oral hearing. The panel decided that the fresh evidence application would be considered at a later date.

[73] The Crown did not cross-examine either fresh evidence witness, nor did it attempt to adduce evidence in response. Counsel were content that the fresh evidence application could be decided without further oral argument. Having reviewed the materials filed, we did not require the attendance of counsel for oral submissions.

[74] For the following reasons, the application to admit the fresh evidence is dismissed, primarily because it has not been established that the evidence could reasonably be expected to have affected the result at trial. The proffered evidence is largely a repetition of the expert evidence that the defence led at trial. It is adduced in an attempt to bolster the appellant's claim that he honestly believed that he saw Mr. Yatim rise to a 45-degree angle just before firing the second volley. However, the fresh evidence does not advance the appellant's position at all. Neither expert sheds light on the likelihood of the appellant experiencing the perceptual distortion or hallucination that he claims.

(1) The issue and the evidence at trial

[75] At trial, the Crown called Deputy Chief Federico of the Toronto Police Service ("TPS") to testify about police training and use-of-force situations. He testified that TPS officers are trained under simulated conditions. Trainers provide officers with a sense of what they would encounter in such situations, which are stressful and can cause officers to experience physiological changes, such as shallow breathing, rapid heart rates and sweaty palms, as well as perceptual problems. As Deputy Chief Federico explained:

You know, these are sensations that human beings will experience under stressful situations. So we try to recreate that stress in the scenario so that the officers can recognize it and work through it so that they are practiced in carrying out their assignment under a stressful situation, to the extent that we can simulate that, and that's called "stress inoculation".

[76] In cross-examination, Deputy Chief Federico agreed that an officer may experience tunnel vision (i.e., being hyper focused on the source of the threat to the exclusion of other circumstances) and may experience perceptual problems about certain aspects of an encounter, such as how quickly the events took place, and the number of shots fired.

[77] Deputy Chief Federico acknowledged limitations with the training provided to officers. It is impossible to account for every dangerous situation police officers may encounter. Moreover, there are limitations inherent in simulations, as opposed to real-life events.

[78] The defence led the expert opinion evidence of Dr. Laurence Miller, a clinical psychologist with extensive academic, practical and clinical experience in police psychology. In an unreported ruling, the trial judge admitted the evidence of Dr. Miller on the "psychophysical effects of critical incident stress on the human mind". The trial judge permitted him "to give expert opinion [evidence] as to the cognitive and perceptual effects that may be experienced by a police officer during an officer involved shooting". More specifically, especially for the purposes of this ground of appeal, the trial judge said:

Also in the absence of Dr. Miller's evidence as to the effects of "priming" and "magnification of threat" the jury may not properly evaluate the credibility of the accused's assertion that he perceived the deceased's torso rise to the extent of 45 degrees as a prelude to a renewed attack in circumstances where the videos demonstrate a negligible rise if any.

[79] Dr. Miller testified about "critical incident stress" and the physical, cognitive and perceptual effects that accompany that stress. He testified that the human stress response has been studied for over 100 years and "we know very reliably from study after study that there are certain physiological changes that occur in the body under stress". In terms of those physiological changes, Dr. Miller testified that stress causes chemicals such as cortisol to be secreted in the body and brain, causing, among other reactions, rapid heart rate, shallow breathing, numbness and tingling of the extremities, tight muscles and "perhaps a sense of cloudiness and confusion".

[80] Two critical and related concepts were discussed in Dr. Miller's testimony -- "priming" and "magnification". "Priming", or "sensitization", is the neurological response that occurs when a person has already experienced a stressful or dangerous situation. As Dr. Miller testified: "Something about the first stimulus sensitizes or primes that group of brain cells to respond in a much more exaggerated fashion, even to what's considered a subliminal or very mild subsequent stimulus." He described it again in the following way: ". . . the brain is primed to recognize a threat and if a threat fails to be neutralized, if the threat repeats itself, that perception of threat is going to be perceived at a much higher register".

[81] "Priming" leads to "magnification" where "the level of severity, the level of threat of a given situation may be greater than, again, on sober reflection and 20/20 hindsight may be judged to be the case".

[82] In cross-examination, Dr. Miller agreed that it is "potentially possible" that some of the psychological phenomena associated with the stress response, including priming and magnification, may not occur in a critical incident stress situation.

[83] The appellant suggests that, in cross-examination, Dr. Miller agreed that the "stress response would have diminished by the time of the second volley, as the threat Mr. Yatim posed receded . . . but was unable to qualify how responsive that recession would be to surrounding circumstances". We do not read Dr. Miller's evidence this way. Responding to the hypothetical scenario based on the facts of this case put to him in evidence, and addressing the situation after the first volley, Dr. Miller said: "This is going to put any normal system on even higher alert because now the dangerousness of the threat has become unpredictable." This evidence is consistent with Dr. Miller's more general evidence about "priming" and "magnification". It was never suggested to the jury that Dr. Miller testified that the appellant's stress response would have abated by the time of the second volley.

[84] Dr. Miller also testified that the "stress inoculation" training described by Deputy Chief Federico is limited and incomplete. The trial judge summarized this aspect of Dr. Miller's evidence in his charge:

He testified that stress inoculation in which officers are taught to prepare and deal with stress in different scenarios is helpful but limited in that not every scenario can be anticipated, and what is lacking is that officers are not taught coping skills to deal with stress itself.

[85] By the end of the trial, there was evidence before the jury that police officers in use-of-force encounters experience stress on both a physiological and psychological level. According to Deputy Chief Federico, "stress inoculation" helps to mitigate these effects. According to Dr. Miller, the training of TPS officers is inadequate. Apart from tunnel vision, priming and magnification, there was no evidence before the jury that a use-of-force encounter could cause a police officer to hallucinate -- to perceive something that did not actually happen in the physical world (i.e., that Mr. Yatim was rising from the floor of the streetcar before the second volley). The appellant's evidence stood alone on this critical issue. The proposed fresh evidence lends no assistance to his claim.

(2) The proposed fresh evidence

[86] The appellant relies on a nine-page report prepared by Dr. Andersen, and an eight-page report by Dr. Lovallo. Both are well-qualified and experienced psychologists. However, as explained below, the content of their reports that could have any impact on the issues on appeal is brief, and ultimately unhelpful.

[87] The appellant relies most heavily on Dr. Andersen's report. Dr. Andersen was asked to provide "a literature review concerning scientific studies and reports that deal with the question of behavioural responses to stressful situations". The report also summarizes her research findings from a 2014 study conducted on six emergency task force ("ETF") officers of the TPS, over the course of 16 days. Dr. Andersen's research findings have not been published nor, as far as can be determined, subjected to peer review.

[88] The 2014 study has two components. The first involved observing officers in training scenarios. Officers wore heart monitors. The research team was allowed to collect cortisol samples through saliva before and after staged events. The second component of the study involved measuring the officers' heart rates while they were on the road, and then correlating those readings with detailed activity logs that the officers kept.

[89] Dr. Andersen summarized her findings as follows:

ETF officers in our study demonstrated significant stress arousal, both cardiovascular and cortisol during training exercises. We were also able to assess cardiovascular stress arousal during active duty "real life" encounters. We assessed 48 potential Use of Force encounters [both in training and active duty] with ETF officers. Over all the encounters, stress arousal duration lasted, at minimum 5 minutes, and on average 30 minutes.

[90] Dr. Andersen discussed her findings in more detail. She observed that stress arousal lasted longer during active duty encounters when compared with encounters in a training context. The report offers the following conclusion:

It should be noted that the results of our study were surprising given the fact that the participants were highly trained tactical team members. Training opportunities were held continuously during the year and officers were exposed to a wide variety of training tools and types of training. Based on this data, we hypothesize that front-line officers with less training would display even greater stress arousal and duration of arousal given less frequent and varied training opportunities and experience.

[91] The appellant attempts to bolster Dr. Andersen's findings with Dr. Lovallo's report. He, too, provides a review of the literature concerning the physiological dimensions of the stress response, dating back to the 1930s.

[92] Dr. Lovallo's report devotes roughly a page to Dr. Andersen's 2014 study. He offers the following brief appraisal of her work:

Dr. Andersen's measurement of physiological arousal, using continuous heart rate monitoring, in the study of police officers under training in the field would be considered the most practical and useful measure of emotional arousal for a study in active persons such as police.

The measurement methods Dr. Andersen has used in her studies in the training setting and in the field, are in line with current research standards and are appropriate for the settings and behaviour demands in question.

[93] It is not clear why Dr. Lovallo's report was made part of this fresh evidence application. Perhaps its limited appraisal is intended to compensate for the fact that Dr. Andersen's study has not been peer reviewed. Nevertheless, neither report refers to Dr. Miller's trial testimony. His conclusions are not contradicted. Neither Dr. Andersen nor Dr. Lovallo address perceptual or cognitive distortions. Indeed, the scope of Dr. Andersen's research is considerably narrower than the scope of Dr. Miller's evidence; her findings are restricted to two physiological stress measures (heart rate and cortisol secretion).

(3) Analysis

(i) Leave is not required

[94] As noted above, due to the timing of the fresh evidence application, the Crown took the position that the appellant should be required to obtain leave to pursue the application. The panel ultimately decided to entertain the application, which has been considered in writing. The Crown now takes the position that, irrespective of the timing of a fresh evidence application, leave is always required. We disagree. There is no requirement that a party to a criminal proceeding first obtain leave before pursuing a fresh evidence application.

[95] The power to admit fresh evidence is grounded in the general powers of a court of appeal, found in s. 683 of the Criminal Code. Section 683(1)(d) provides:

683(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness[.]

An intermediate step requiring leave to bring a fresh evidence application, whether brought by the Crown or the defence, is not reflected in the language of s. 683(1)(d). Indeed, none of the powers in s. 683(1) is qualified by a leave requirement; instead, each is conditioned by the "interests of justice".

[96] The omission of a leave requirement in the language of s. 683(1)(d) is telling. There are other provisions in this part of the Criminal Code (Part XXI -- Appeals -- Indictable Offences) where leave is required. See, for example, s. 675(1)(a)(ii), (iii) and (b) (right of appeal of person convicted); and s. 676(1)(d) (right of Attorney General to appeal). Moreover, in Part XXVII -- Summary Convictions, s. 839(1) provides an appeal to this court, but only with leave (of a single judge or a panel of the court).

[97] The Crown argues that because fresh evidence applications will generally relate to appeals launched in accordance with s. 675(1)(a)(iii), which require leave, so too must a fresh evidence application. While s. 675 addresses generally the rights of appeal of a person convicted, s. 683 explicitly addresses the powers of the court of appeal. Section 675 cannot be read in a manner that overrides the specific powers granted under s. 683.

[98] The Crown also relies on R. v. Romain, 2017 ONCA 519, in which this court refused to hear a fresh evidence application brought on the eve of the appeal. The court determined that was not "in the interests of justice" to consider the application on its merits for the following reasons, at para. 21:

There is a strong argument to be made that the "interests of justice" would not be served by receiving the appellant's affidavit on the eve of the appeal, when no explanation is offered for the total failure to comply with the rules and conventions of this court governing fresh evidence applications in criminal appeals. The negative impact on the proper administration of justice flowing from receiving an affidavit at this stage of the proceeding is properly considered in determining what the "interests of justice" require in a given case. The timing of the filing of the appellant's affidavit, had there been any merit to this argument, may well have forced the court to bifurcate the appeal and further delay the resolution of what is already a five-year old appeal. We would think the court would be reluctant to go down that path without some good explanation for the late filing of the material and some demonstration of real potential merit in the fresh evidence application.

[99] The Crown argues that the approach in Romain is "consistent" with the practice of the Court of Appeal of Quebec, where a separately constituted panel may consider whether there is sufficient merit in a fresh evidence application to permit the matter to be heard on the appeal proper: see Onwualu v. R., 2015 QCCA 1515, at paras. 19-22. To a certain extent, this practice is governed by s. 54 of the Rules of the Court of Appeal of Quebec in Criminal Matters, SI/2006-142. Section 54(3) furnishes that court with the power to "authorize or refuse the taking of fresh evidence and determine, if applicable, the terms by which relevant documents will be exchanged and cross-examinations undertaken". After evidence has been "taken", the court hearing the appeal determines the admissibility of the evidence. There is no similar provision in this court's Criminal Appeal Rules, SI/93-169.

[100] The Crown's reliance on Romain is misplaced. The issue that arose in that case was decided by a straightforward application of the "interests of justice" threshold. Neither the Criminal Code nor the Rules of this court establish a separate leave requirement. Equally, there is no right to have fresh evidence considered on its merits. The "interests of justice" in s. 683 is the broad authority to determine both how the application will proceed and the ultimate question of admissibility. This approach has worked well and there is no need to create a new norm.

[101] In conclusion, there is no separate leave requirement for fresh evidence applications in criminal matters.

(ii) The merits

[102] The governing approach to the admission of fresh evidence is found in R. v. Palmer, 1980 1 S.C.R. 759, at p. 766 S.C.R., dealing with an earlier version of this section (s. 610). After reviewing a number of appellate court decisions bearing on this issue, McIntyre J. articulated the following principles, at p. 775 S.C.R.:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases. . . .

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

This court has applied these principles on countless occasions.

[103] Counsel are diametrically opposed in their positions on the applicability of the Palmer factors. The appellant contends that all of the pre-conditions for admissibility are met. He contends that the evidence reveals that the prevalence of the stress response is much greater and of longer duration than the evidence suggested at trial. Moreover, the evidence "fills the gap that [Dr.] Miller's evidence left and the Crown exploited". In the appellant's view, the proposed fresh evidence shows that stress inoculation does little to counteract the effects of the stress response and shows that the stress response endures for a significantly longer period of time than the appellant's brief interaction with Mr. Yatim. According to the appellant, had this evidence been admitted at trial, the jury would have been more likely to have accepted his evidence that he was honestly mistaken in his claim that Mr. Yatim was in the process of getting up just before the second volley.

[104] The Crown argues that none of the criteria for admission have been met. Allowing for the fact that Dr. Andersen's study of ETF officers may qualify as being fresh, it adds nothing to the trial evidence about perceptual distortions caused by stress. The Crown further contends that Dr. Andersen's findings about the duration of the physiological stress response is inconsequential because there was no real issue at trial that, after the appellant fired the first volley at Mr. Yatim, he would still have experienced the same kind of stress response 5.5 seconds later as he fired the second volley. The Crown relies on Dr. Miller's evidence concerning "priming" and "magnification" in support of this proposition.

[105] In our view, the appellant has established that Dr. Andersen's study of ETF officers is "fresh" within the meaning of Palmer. The study was not available to counsel at the time of the trial. Counsel cannot be faulted for not adducing this evidence at the time. However, this applies only to the ETF study. Dr. Andersen's literature review is not fresh; it merely recounts a well-established body of academic study, dating back many years. Dr. Miller alluded to this body of literature during his testimony. Consequently, all aspects of Dr. Andersen's and Dr. Lovallo's reports that are unrelated to the 2014 ETF study are not "fresh".

[106] In our view, this application falters on the remaining Palmer factors, especially on the question of whether the proposed evidence could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. In our view, it could not.

[107] For starters, the Crown points to shortcomings in Dr. Andersen's study that it says should prevent its admission as expert evidence. These weaknesses include the small sample size of six officers, the limited duration of the study, the incomplete descriptions of the officers' activities and the limited physiological data from the active duty situations. The Crown also relies upon the fact that the study remains unpublished and apparently has not been subjected to peer review. Lastly, the report does not evaluate Dr. Miller's testimony, nor does it suggest that he was wrong.

[108] The appellant contends that, because the Crown declined to cross-examine Dr. Andersen (or Dr. Lovallo), it is prevented from challenging the reliability of this evidence. We disagree. Sometimes shortcomings in expert reports can only be exposed through cross-examination; sometimes they are self-evident. Nevertheless, it is not necessary to our ultimate conclusion that we resolve this issue definitively. We simply note that, just as the trial judge expressed "concerns" about the value of Dr. Miller's evidence at trial, certain aspects of Dr. Andersen's ETF study reveal vulnerability at the admissibility stage. This is not meant to be a comment on Dr. Andersen's competence or stature as an academic or researcher; it is an observation of this particular study.

[109] Even assuming that the report would be admissible as expert opinion evidence, the fresh evidence application should still fail. In general, fresh evidence on appeal is not meant to provide an opportunity to tender concurring expert opinions on issues canvassed at trial, nor is it a platform for offering expert reports to repair defects in expert evidence adduced at trial. As this court said in R. v. M. (P.S.), 77 C.C.C. (3d) 402 (C.A.), at pp. 411-12 C.C.C., fresh evidence will not be admitted merely to add a "third voice" to the issues canvassed at trial. See, also, R. v. Smith, 161 C.C.C. (3d) 1 (C.A.), at para. 71, leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 156; and R. v. Phillion, 2009 ONCA 202, 241 C.C.C. (3d) 193, at para. 233. Dr. Andersen's report purports to add a "third voice" to a relatively uncontentious issue at trial (i.e., the physiological responses to use-of-force encounters), but it fails to address the critical issue at trial (i.e., whether the appellant honestly believed that Mr. Yatim was in the process of getting up just before the second volley was fired).

[110] The evidence at trial clearly established that use-of-force scenarios triggered the stress response in police officers. This point was clearly made in the evidence of Deputy Chief Federico and Dr. Miller, as well as the evidence of the appellant's partner, Constable Fleckeisen. Dr. Miller testified about the physiological responses to stress, including cardiovascular activity and cortisol secretion. Dr. Andersen's recent study confirms this.

[111] The appellant places a great deal of significance on the duration of the stress response revealed in Dr. Andersen's study. He suggests that this contradicts the evidence at trial. We disagree. It was not seriously disputed at trial that the appellant continued to experience significant stress just before the second volley. This was at the heart of Dr. Miller's priming and magnification evidence. Indeed, Dr. Andersen's report falls significantly short of the territory covered in Dr. Miller's testimony. While Dr. Miller attempted to address the behavioural and perceptual aspects of the stress response, Dr. Andersen's study is confined to two physiological responses during training sessions (cardiac and cortisol), and only one during real-life encounters (cardiac).

[112] The appellant argues that the fresh evidence is significant because it undermines the evidence of Deputy Chief Federico on "stress inoculation" by proving that officers who have received the benefit of more training than the average TPS officer (including the appellant) still experience high levels of stress in use-of-force encounters. However, the efficacy of "stress inoculation" was thoroughly canvassed at trial. Dr. Miller testified that this training has limits because it does not reduce the physiological stress response. Dr. Andersen's evidence adds little, if anything, to the debate. Again, it is restricted to physiological responses; it does not purport to address potential perceptual or cognitive distortions.

[113] Lastly, and most importantly, Dr. Andersen's report does not address, nor was her research designed to address, the question of whether officers in use-of-force situations experience perceptual distortions of the type reported by the appellant. Without that link, her evidence could not reasonably be expected to affect the result at trial. The appellant wishes to draw the conclusion from Dr. Andersen's report that the physiological responses of an officer in use-of-force scenarios are co-extensive with that officer's cognitive or psychological response. Nothing beyond assumption supports this conclusion.

[114] The application to adduce fresh evidence is dismissed.

G. The Appeal Against Sentence

[115] Upon the appellant's conviction for attempted murder with a firearm, the Crown sought a sentence of eight to ten years' imprisonment. The appellant wanted a conditional sentence of imprisonment (Criminal Code, s. 741.2). However, because the appellant faced a mandatory minimum sentence of five years' imprisonment under s. 239(1)(a)(i) of the Criminal Code for committing attempted murder while using a restricted or prohibited firearm, a conditional sentence was not available. Consequently, the appellant challenged the constitutional validity of both this provision, and the related four-year mandatory minimum found under s. 239(1)(a.1) for attempted murder with any other type of firearm, based on alleged violations of ss. 7 and 12 of the Canadian Charter of Rights and Freedoms. In thorough reasons, the trial judge rejected the appellant's challenge: R. v. Forcillo, 2016 ONSC 4896, 133 W.C.B. (2d) 177 (S.C.J.) (the "constitutional ruling"). In separate and equally thorough reasons, the trial judge sentenced the appellant to six years' imprisonment: 2016 ONSC 4850, 132 W.C.B. (2d) 91 (S.C.J.) ("reasons for sentence"). The appellant challenges both decisions.

[116] We would dismiss both aspects of the sentence appeal. The trial judge made no error in dismissing the appellant's constitutional claims. The outcome of the s. 12 claim is all but predetermined by the decision in R. v. Ferguson, 2008 SCC 6, a case in which a police officer killed a prisoner in his custody. The Supreme Court unanimously upheld the mandatory minimum sentence of four years' imprisonment for manslaughter while using a firearm in the commission of an offence (s. 236(a) of the Criminal Code). The appellant's overbreadth argument under s. 7 of the Charter essentially boils down to a claim that the mandatory minimum sentence was never intended to apply to police officers when acting in the line of duty. The trial judge rejected this claim, as do we.

[117] Lastly, we are satisfied that six years' imprisonment was a fit sentence. There is no basis upon which to interfere.

(1) The constitutionality of the mandatory minimum sentence

(i) Cruel and unusual punishment (s. 12)

[118] Attempted murder under s. 239 of the Criminal Code is one of the most serious offences in Canadian law. It has always been punishable by a maximum sentence of life imprisonment.

[119] In 1995, Parliament passed An Act respecting firearms and other weapons, S.C. 1995, c. 39 (the "Firearms Act"), creating a number of mandatory minimum sentences. Section 143 of that Act created a mandatory minimum sentence of four years' imprisonment for committing manslaughter while using a firearm in the commission of the offence. In 2008, Parliament passed the Tackling Violent Crime Act, S.C. 2008, c. 6. Under s. 16 of that Act, s. 239 of the Criminal Code was amended again to create multiple mandatory minimum sentences for attempted murder. The section currently reads:

239(1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

[120] This appeal is only concerned with the validity of s. 239(1)(a)(i) (attempted murder involving the use of a prohibited or restricted firearm) and (a.1) (attempted murder involving the use of any other firearm). The other mandatory minimum sentences under s. 239(1)(a)(i) (attempted murder connected with the activities of a criminal organization) and (ii) (second or subsequent offences under subsection (1)(a)) are not at issue in this appeal.

[121] The appellant argues that the punishments under s. 239(1)(a)(i) and (a.1) are cruel and unusual, contrary to s. 12 of the Charter. However, he does not press the point strongly, especially in light of the Supreme Court's decision in Ferguson. Nevertheless, he invites this court to distinguish this case and find s. 239(1)(a)(i) and (a.1) unconstitutional. The appellant also argues that these provisions are overbroad and violate s. 7 of the Charter.

[122] The principles that animate s. 12 of the Charter are not in dispute. Given the sensible approach that counsel for the appellant has taken to this aspect of the constitutional claim, these principles can be reviewed quite succinctly.

[123] A punishment is "cruel and unusual" if it is "grossly disproportionate" to a fit punishment in the circumstances. In this case, the question is whether s. 239(1)(a)(i) and (a.1) mandate sentences that are grossly disproportionate to the facts of the case before the court, or the facts of cases that may arise in the "law's reasonably foreseeable applications": R. v. Lloyd, 2016 SCC 13, at para. 22. See, also, R. v. Nur, 2015 SCC 15, at paras. 58, 68 and 72.

[124] A court must determine what a fit sentence is for the offence, taking into account the relevant aggravating and mitigating factors of the case before the court or reasonably hypothetical cases. Then the court must ask whether the impugned provision requires that a judge impose a sentence that is grossly disproportionate to what is fit and appropriate in the circumstances. If the answer to the second question is yes, the provision will violate s. 12: see Nur, at para. 46; Lloyd, at para. 23. The Supreme Court has set a "high bar" for finding that a sentencing provision violates s. 12: Lloyd, at para. 24.

[125] In addition to relying on his own circumstances, the appellant posits some hypothetical scenarios in an attempt to expose the constitutional invalidity of s. 239(1)(a)(i) and (a.1). In the s. 12 framework, such scenarios must be reasonable. This does not include "far-fetched or marginally imaginable cases": see R. v. Goltz, [1991] 3 S.C.R. 485, at p. 506 S.C.R.; R. v. Morrisey, 2000 SCC 39, at para. 30; Nur, at paras. 54-57. This strict approach "excludes using personal factors to construct the most innocent and sympathetic case imaginable": Nur, at para. 75.

[126] The breadth of an offence, in terms of the conduct that it criminalizes, is crucial to the s. 12 inquiry. In Lloyd, at para. 24, Chief Justice McLachlin wrote for the majority: "The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate." This legislative feature was critical to the declaration of invalidity of s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 in Lloyd (see para. 27) and s. 95 of the Criminal Code in Nur. In Nur, the majority found that s. 95 "casts its net over a wide range of potential conduct" (para. 82). It covers cases involving a high level of moral blameworthiness, as well as more benign applications, involving little or no danger to the public. The majority agreed with this court's conclusion that, when applied to these low-level scenarios, the mandatory minimum sentence is grossly disproportionate.

[127] Returning to Lloyd, McLachlin C.J.C. made the following observations about the breadth of offence definitions, at para. 35:

. . . mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.

[128] Attempted murder is very different from the crimes considered in Nur and Lloyd. Section 239(1)(a)(i) and (a.1) do not apply to a "wide range of potential conduct". Every case caught by these sections involves an individual who intends to end the life of another by using a firearm. There could hardly be a more focused and lethal combination for the purposes of s. 12 of the Charter.

[129] The moral blameworthiness of attempted murder is always very high. To be convicted of this offence, an accused must have a specific intention to kill the victim: R. v. Ancio, [1984] 1 S.C.R. 225, at pp. 248-49 S.C.R. In R. v. Logan, [1990] 2 S.C.R. 731, the Supreme Court considered the fault requirement for attempted murder in the context of party liability under s. 21(2) of the Criminal Code. Chief Justice Lamer characterized attempted murder in the following way, at p. 743 S.C.R.:

Quite simply, an attempted murderer is, if caught and convicted, a "lucky murderer."

The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky -- the ambulance arrived early, or some other fortuitous circumstance -- but he still has the same killer instinct. Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe.

[130] A similar view is found in R. v. McArthur, [2004] O.J. No. 721, 182 C.C.C. (3d) 230 (C.A.), at paras. 47-48:

Under our law, a person can only be convicted of attempted murder if he or she intended to kill. The moral culpability of the attempted murderer is at least equal to that of a murderer. He or she avoids a murder conviction and the automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was not killed.

A conviction for attempted murder will almost inevitably result in a lengthy penitentiary term.

[131] The conclusion expressed in the last line of both of these passages is borne out in the trial judge's review of the sentencing jurisprudence for attempted murder. In his reasons for sentence, at para. 72, the trial judge referred to R. v. Tan, 2008 ONCA 574, 268 O.A.C. 385 as establishing a range of six years' to life imprisonment. In Tan, this court upheld a sentence of 15 years for attempted murder. In defining the range of sentence, Laskin J.A. said, at para. 35:

The sentences for attempted murder imposed or upheld by this court have varied widely. At the lower end of the range is R. v. Campbell, [2003] O.J. No. 1352 (C.A.), where this court upheld the sentence of nine years' imprisonment. Reflecting an even lower sentence is R. v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.), where, on a Crown appeal of a sentence of two years less a day (in addition to the 28 months the accused had spent in pre-trial custody), Simmons J.A. said that the appropriate sentence was six years' imprisonment less credit for time served.

[132] Tan has been followed in other cases. In R. v. Chevers, 2011 ONCA 569, 282 O.A.C. 388, this court upheld a sentence of 15 years' imprisonment, stating: "double digit prison sentences for attempted murder have been imposed in cases of planned executions involving the use of firearms" (para. 8). See, also, R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, in which a sentence of 16 years' imprisonment was upheld in a case of attempted murder in which a firearm was used.

[133] The appellant argues that, as a police officer acting in the line of duty, confronted with a volatile situation that demanded that he make split-second decisions, his circumstances are special, and take him out of the typical range for attempted murder. We disagree. This leads us to the Supreme Court's decision in Ferguson.

[134] Ferguson was a police officer who became involved in an altercation with the man he arrested. When Ferguson placed his prisoner in a holding cell, a scuffle ensued. The victim was shot in the stomach and then in the head. Ferguson was charged with second degree murder but convicted of manslaughter.

[135] Ferguson faced a mandatory minimum sentence of four years' imprisonment for committing manslaughter while using a firearm pursuant to s. 236(a) of the Criminal Code. The trial judge refused to impose this sentence and sentenced Ferguson to a conditional sentence of two years less a day. The Alberta Court of Appeal reversed the trial judge and imposed the mandatory minimum sentence. The Supreme Court dismissed the appeal, holding that s. 236(a) does not infringe s. 12 of the Charter. Given the obvious parallels with this case, the Supreme Court's analysis in Ferguson is important.

[136] At the outset of her analysis, McLachlin C.J.C. relied on the Supreme Court's previous decision in Morrisey, upholding the constitutional validity of s. 220(a) of the Criminal Code, which provides for a four-year mandatory minimum sentence for criminal negligence causing death while using a firearm. In a sense, the s. 12 issue in Ferguson was predetermined by the result in Morrisey; Morrisey and Ferguson foreshadow the outcome on this appeal.

[137] In Ferguson, the Supreme Court agreed with the trial judge's findings that the jury had (i) rejected the appellant's claim of self-defence; and (ii) at the very least, entertained a reasonable doubt whether the appellant possessed one of the intents for murder in s. 229(a) of the Criminal Code (see para. 20). After correcting fact-finding errors made by the trial judge, the court considered whether the mandatory minimum sentence in s. 236(a) was reasonably capable of generating "grossly disproportionate" sentences. Writing for a unanimous court, McLachlin C.J.C. held, at para. 28:

When the erroneous findings of the trial judge are set aside, no basis remains for concluding that the four-year mandatory minimum sentence prescribed by Parliament constitutes cruel and unusual punishment on the facts of this case. The trial judge recognized as aggravating factors that Constable Ferguson was well trained in the use of firearms and stood in a position of trust with respect to Mr. Varley, and correctly noted that the standard of care was higher than would be expected of a normal citizen. By way of mitigation, the trial judge noted that Constable Ferguson's actions were not planned, that Mr. Varley initiated the altercation in the cell, that Constable Ferguson had little time to consider his response, and that his instincts and training played a role in the shooting. The mitigating factors are insufficient to make a four-year sentence grossly disproportionate. The absence of planning, the apparent fact that Mr. Varley initiated the altercation in the cell, and the fact that Constable Ferguson did not have much time to consider his response, are more than offset by the position of trust Constable Ferguson held and by the fact that he had been trained to respond appropriately to the common situation of resistance by a detained person. I agree with the Court of Appeal that the mitigating factors do not reduce Constable Ferguson's moral culpability to the extent that the mandatory minimum sentence is grossly disproportionate in his case.

[138] Some of the features of the offence in Ferguson are present in this case, including the fact that the appellant did not plan the killing, that Mr. Yatim initiated the confrontation and that the appellant did not have much time to consider his response.

[139] The appellant faces a virtual wall of adverse jurisprudence. Morrisey held that s. 220(a) does not infringe s. 12. Ferguson held that s. 236(a) does not infringe s. 12. To this list, we would add R. v. McDonald (1998), 40 O.R. (3d) 641, [1998] O.J. No. 2990 (C.A.), in which this court upheld the constitutional validity of s. 344(a) (committing robbery while using a firearm) under s. 12 of the Charter.

[140] Against this jurisprudential backdrop, the appellant has failed to demonstrate that either s. 239(1)(a)(i) or (a.1) of the Criminal Code, as applied to his circumstances, violate s. 12 of the Charter. The high level of moral culpability inherent in the crime of attempted murder easily surpasses that which attaches to manslaughter, criminal negligence causing death and robbery. When the appellant's breach of trust is factored into the equation, as it was in Ferguson, the result is inexorable -- there is no infringement of s. 12 of the Charter.

[141] The appellant also points to some hypothetical scenarios in an attempt to undermine the validity of s. 239(1)(a)(i) and (a.1). The appellant advanced seven scenarios before the trial judge, all of which were rejected: constitutional ruling, at paras. 79-121. Only two survive on appeal. These can be addressed quite briefly.

[142] The first scenario involves a homeowner who is confronted by an armed intruder. The homeowner manages to disarm the intruder and ends up shooting at him five or six times, in fear, missing with each shot. The appellant contends that, if the trier of fact rejects the objective reasonableness of the decision to shoot the intruder after justifiably disarming him, the homeowner would be unfairly subject to one of the mandatory minimum sentences in s. 239(1)(a)(i) and (a.1), depending on the type of gun used.

[143] The second scenario involves a woman who has been abused by her intimate partner. Misperceiving that another attack is about to commence, she shoots her abuser in what she believes to be lawful self-defence, with the abuser's own gun, but the shot is not fatal. The appellant argues that, should her claim of self-defence be rejected, she would be liable to a mandatory sentence of four or five years' imprisonment. The appellant contrasts this to a situation in which the same woman uses a knife, instead of gun, and actually kills her abusive partner. If convicted of manslaughter in those circumstances, the woman would not be subject to a mandatory minimum sentence and would likely receive a sentence of three years' imprisonment.

[144] Along with the trial judge, we are not persuaded that the imposition of one of the mandatory minimum sentences in s. 239(1)(a)(i) and (a.1) would produce grossly disproportionate sentences in either scenario. In both instances, the appellant underplays the two critical components that are at the heart of this case -- an unjustified specific intention to kill, coupled with the use of a firearm.

[145] The appellant's armed intruder scenario was framed somewhat differently before the trial judge. In that rendition, the intruder is shot and laying on the ground while the accused awaits the arrival of the police. The offender mistakenly, but unreasonably, believes that the intruder is trying to get up, and accordingly shoots him again, intending to kill. Pitched in this fashion, the scenario is remarkably similar to that of the appellant. It is no surprise that the trial judge did not find this scenario to be compelling: see constitutional ruling, at paras. 95-96.

[146] The revised version on appeal is no more compelling. In fact, it is less so. Merely asserting fear, and not misperceiving that the intruder is attempting to re-engage, the homeowner shoots to kill. On either version, a sentence of four or five years' imprisonment would still be supported by the range identified in Tan.

[147] The same may be said of the intimate partner scenario. The appellant strains to make the hypothetical more compelling by adding the detail that the spouse uses her abuser's gun. Moreover, this scenario with which the appellant contrasts this hypothetical is roughly constructed on the fact scenario in R. v. Craig, 2011 ONCA 142, 269 C.C.C. (3d) 61, in which the accused was convicted of manslaughter, not attempted murder. Ultimately, this court found that a sentence of three years' imprisonment was appropriate in light of the accused's serious mental illness. Additionally, the accused used a knife, not a gun, and lacked the intent to kill. Her sentence was governed by the lower range of sentence for manslaughter, not for attempted murder. This scenario does not suggest that the mandatory minimum sentences in s. 239(1)(a)(i) and (a.1) infringe s. 12.

[148] The appellant has failed to establish a breach under s. 12 of the Charter. It is unnecessary to consider s. 1.

(ii) Fundamental justice and overbreadth (s. 7)

[149] The appellant argues that s. 239(1)(a)(i) and (a.1) should be declared inoperative because they violate s. 7 of the Charter on the basis of overbreadth. The trial judge acknowledged, at para. 131 of the constitutional ruling, that it was open to the appellant to advance this argument. We agree. In Nur, McLachlin C.J.C. said, at para. 110: "I do not rule out the possibility that despite the detailed sentencing jurisprudence that has developed under s. 12 of the Charter, situations may arise requiring recourse to s. 7 of the Charter."

[150] However, resort to s. 7 in the sentencing context has its limits.

[151] We do not take McLachlin C.J.C.'s words as an invitation to re-evaluate a sentencing provision based on a watered-down or more accommodating version of the test developed under s. 12 of "gross disproportionality". The appellant cannot elude the exacting requirements of that test by re-framing a proportionality argument as an issue to be considered under s. 7: see R. v. Safarzadeh-Markhali, 2016 SCC 14, at para. 21; Lloyd, at paras. 40-44; and R. v. Malmo-Levine, 2003 SCC 74, at para. 160. We make these observations because, as discussed below, just below the surface, part of the appellant's overbreadth argument reveals seeds of a s. 12 claim.

[152] It is unnecessary to trace the development of overbreadth as a principle of fundamental justice under s. 7 of the Charter. It is sufficient to start with Canada (Attorney General) v. Bedford, 2013 SCC 72, in which the Supreme Court described overbreadth as follows, at paras. 112-113:

Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts . . .

Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law's purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual.

[153] In Safarzadeh-Markhali, McLachlin C.J.C. reiterated, at para. 50: "In other words, the law must not go further than reasonably necessary to achieve its legislative goals." See, also, Carter v. Canada (Attorney General), 2015 SCC 5, at para. 85; R. v. Appulonappa, 2015 SCC 59, at para. 71.

[154] Moreover, the cases have created a high threshold for establishing an infringement of s. 7 based on overbreadth. In Bedford, McLachlin C.J.C. said, at para. 119, "[t]his standard is not easily met". A recent decision of a five-judge panel of this court underscored this threshold: see R. v. Long, 2018 ONCA 282, at para. 76.

[155] The overbreadth inquiry proceeds in two steps. First, a court must assess the purpose of the impugned provision, in this case, the mandatory minimum sentences in s. 239(1)(a)(i) and (a.1). Second, it must be determined whether the mandatory minimum provisions deprive the appellant of his life, liberty or security of the person because in some cases, they do not further their intended purpose: see Appulonappa, at para. 27.

[156] The respondent raises the preliminary issue that the appellant is not entitled to advance the overbreadth claim because he has not demonstrated a deprivation of liberty. This submission rests on the fact that the appellant was sentenced to a term of imprisonment that exceeded the mandatory minimum sentences in s. 239(1)(a)(i) and (a.1). We reject this argument.

[157] Under s. 12, the focus is not solely on the circumstances of the offender. In Nur, the majority held that excluding consideration of reasonably foreseeable hypothetical applications would "run counter to settled authority of this Court and artificially constrain the inquiry into the law's constitutionality" (para. 49). The Supreme Court has consistently said that a challenge to a law does not require that the provision under attack contravene the rights of the offender before the court. This authority stretches back to R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, in which Dickson J., as he then was, said [at p. 313 S.C.R.]: "no one can be convicted of an offence under an unconstitutional law" and "[i]t is the nature of the law, not the status of the accused, that is in issue" (pp. 314-15 S.C.R.). See, also, Nur, at para. 51; Ferguson, at para. 59.

[158] This same approach, based on rule of law principles, applies to overbreadth claims under s. 7. In Appulonappa, McLachlin C.J.C., writing for a unanimous court, cited Nur for this proposition, at para. 28:

The appellants argue that s. 117 is overbroad, not as it applies to the conduct alleged against them, but as it applies to other reasonably hypothetical situations. It is indeed established that a court may consider "reasonable hypotheticals" to determine whether a law is consistent with the Charter.

[159] This definitively disposes of the question of the appellant's standing to assert his overbreadth claim.

[160] The appellant argues that the reach of s. 239(1)(a)(i) and (a.1) extend well beyond their stated purpose. He argues that the sections were not meant to apply to situations involving police officers who use excessive force or to individuals who unreasonably exceed the scope of self-defence. Second, the appellant argues that, as drafted, the impugned mandatory minimum sentences could be applied to a situation in which a firearm is used as a blunt object with which to beat someone. According to the appellant, the sections were not intended to apply to using a firearm without discharging it.

[161] The jurisprudence has emphasized that identifying the purpose of an impugned provision must be undertaken with precision: see Safarzadeh-Markhali, at paras. 24-29; Long, at para. 78. In Appulonappa, McLachlin C.J.C. said, at para. 33: "As with statutory interpretation, determining legislative purpose requires us to consider statements of legislative purpose together with the words of the provision, the legislative context, and other relevant factors." And in R. v. Moriarity, 2015 SCC 55, at para. 28, Cromwell J. held that a court must not articulate a law's purpose too broadly, nor too narrowly. He continued, at para. 32:

[C]ourts should be cautious to articulate the legislative objective in a way that is firmly anchored in the legislative text, considered in its full context, and to avoid statements of purpose that effectively predetermine the outcome of the overbreadth analysis without actually engaging in it.

[162] The appellant submits that the original purpose for creating a mandatory minimum sentence for attempted murder with a firearm was "to deter people from choosing to carry a firearm to carry out an unlawful purpose". He points to statements made in Parliament in relation to the first mandatory provisions created by the Firearms Act. In introducing the legislation, the Honourable Allan Rock, Minister of Justice and Attorney General of Canada at the time, stated the following concerning mandatory minimum sentences relating to firearms: "Those who take up a firearm to threaten others, to rob or assault must know that by choosing to use a firearm they are making an important decision about a large part of the rest of their lives. The punishment must be certain and must be significant": House of Commons Debates, 35th Parl., 1st Sess., vol. 8 (February 16, 1995), at p. 9706.

[163] However, the minister went further. In describing the legislation's effect, he stated that it introduced "tough measures to deal with the criminal misuse of firearms": Debates (February 16, 1995), at p. 9707. The Supreme Court recognized this objective, and others, in Reference re: Firearms Act (Canada), 2000 SCC 31, at para. 20. See, also, R. v. Wust, 2000 SCC 18, at para. 32; and Morrisey, per the concurring reasons of McLachlin J., as she then was, and Arbour J., at para. 70.

[164] More recently, with the enactment of the Tackling Violent Crime Act, statements were made in the House of Commons, and in background literature to the legislation, that the use of illegal firearms and gang activity was on the rise. The Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada at the time, told the House that the government wanted to "ensure that any individuals who want to get involved with these serious firearms offences will have the opportunity to focus on the consequences of their actions": House of Commons Debates, 39th Parl., 2nd Sess., vol. 142 (February 11, 2008), at p. 2864.

[165] From this slim record, the appellant submits that the legislative history establishes that, through the enactment of the mandatory minimum sentences in s. 239(1)(a)(i) and (a.1), Parliament intended to combat "the choice to arm oneself for the purposes of setting out to commit a criminal offence". The appellant submits that police officers do not "choose" to arm themselves; they are required to carry firearms as part of their duties. Consequently, because police officers do not "choose" to pick up firearms for use in criminal activities, they are not susceptible to the legislation's general deterrent aims. Put another way, the suggestion is that the legislation is focused on deterring those who are not otherwise authorized to use a firearm, "real" criminals, or members of criminal organizations who may choose to employ firearms. It is not meant to apply to police officers who misjudge their authorization to use purposeful, deadly force beyond the protection of ss. 25 and 34 of the Criminal Code.

[166] The trial judge rejected this submission. He acknowledged that the Preamble to the Tackling Violent Crime Act failed to precisely state the purpose of s. 239. However, after examining other statements of the justice minister, the trial judge reached the following conclusion on the issue of the provision's intent (constitutional ruling, at para. 142):

I agree that these statements on the one hand emphasize that the mandatory minimum sentence does target the use of guns by criminal gangs, but on the other hand the statements include a mandatory minimum sentence if "one is in the business of using a gun or associated with gangs" as well as tougher sentencing "for those who commit serious gun crimes" or only "individuals who want to get involved with serious firearms offences". In my view the statements suggest only one purpose with a particular emphasis on the criminal element. Moreover, the emphasis on gangs is understandable in the context of the minister seeking to persuade the Senate to act and in the context of seeking to promote the government's agenda with the Canadian public. In my view the statements made by the minister establish a sole purpose with respect to s. 239 of the Criminal Code and that is to deter the use of firearms by anyone with respect to the commission of serious crimes such as attempted murder with particular emphasis on those involved in crime.

[167] Turning to the text of s. 239, the trial judge observed that the provision applies to "everyone" and does not seek to exclude any particular class of individuals. Moreover, when s. 239(1)(a)(i) and (a.1) were enacted, s. 25 of the Criminal Code already provided protection to police officers from prosecution for the use of lethal force, when justified. As the trial judge said, at para. 147: "Once the protection [of s. 25] is gone it is difficult see why an officer is in a better position than an ordinary citizen if the lethal force used amounts to attempted murder." By its broad terms, and by the specific use of "everyone", he held that the provisions apply to the so-called "criminal element", as well as ordinary citizens and police officers. He said, at para. 150:

Having regard to the plain wording of the section I am unable to conclude that by emphasizing the aspect of deterrence to criminals Parliament meant to exclude police officers. Indeed, the defence concedes that s. 239 applies to members of the public and not just to persons associated with criminal organizations.

[168] We agree with this analysis.

[169] The appellant's position proceeds on the faulty basis that, because police officers are required to carry firearms for the protection of themselves and members of the public, they are somehow immunized from the deterrent effect of the mandatory minimum sentences in s. 239(1)(a)(i) and (a.1). This is problematic for two reasons.

[170] First, the challenged provisions do not discriminate between the different ways (legitimate or otherwise) that someone comes into possession of a firearm. Their sole focus is to address the situation of someone who, unjustifiably, tries to kill another person with a firearm. Police officers' obligation to carry firearms does not preclude their criminal misuse in excessive force scenarios. Indeed, it would be strange if Parliament intended to deter those who choose to pick up a firearm for criminal misuse, or members of a criminal organization, but not those who are required to carry firearms while carrying out their duties to protect the public. Moreover, the potential for a police officer to criminally misuse a firearm is not necessarily restricted to excessive force scenarios. Any individual, including police officers, once armed with a gun, is capable of using it to end life. Section 239 addresses all of these scenarios, all of which reflect extreme levels of moral blameworthiness.

[171] Similar reasoning applies to the appellant's example of an individual who lawfully picks up a firearm in self-defence; in other words, an individual who does not arm himself or herself for a criminal purpose, but who subsequently exceeds the scope of self-defence in trying to kill someone with the firearm. Such conduct still attracts a high degree of moral blameworthiness. We note as well that this scenario is very similar to the appellant's home intruder hypothetical under s. 12. As we discuss below in relation to the appellant's blunt object scenario, what are ultimately s. 12 proportionality claims should not be considered under s. 7.

[172] Second, the appellant casts the deterrence purpose too narrowly. The imposition of a mandatory minimum sentence under s. 239(1)(a)(i) or (a.1) is not necessarily restricted to deterring those who are similarly situated to a particular offender. In other words, the deterrent force of these provisions does not proceed on a class-by-class basis. Canadian law takes a heavy stance on firearms. Its deterrent effect may well be broader, deterring all who might be inclined to use a firearm to kill someone. The deterrent value of the sentences mandated in s. 239(1)(a)(i) and (a.1), when applied to a police officer, are capable of extending well beyond this group of potential offenders.

[173] The appellant also submits that s. 239(1)(a)(i) and (a.1) are overbroad as they could apply to situations where an individual with the intent to kill uses a firearm as a blunt instrument but does not fire it. The appellant contends that the impugned mandatory minimum sentences were never meant to apply to this scenario. He points out that a person who commits attempted murder by beating someone with a firearm would be subject to a mandatory minimum sentence, whereas a person who uses a baseball bat to commit the same offence would not.

[174] This submission must be approached with some skepticism. As noted in paras. 149-151, above, the review of a mandatory minimum sentence under s. 7 is not intended to indulge s. 12 claims on a different or lower standard. The appellant's use of this example raises this concern. The appellant advanced the same scenario before the trial judge. However, instead of framing it as an example of overbreadth, he advanced it as a hypothetical scenario for the purposes of s. 12. The trial judge found the scenario unpersuasive (constitutional ruling, at paras. 90-92).

[175] In any event, we are not persuaded that the use of a firearm as a blunt instrument runs afoul of the legitimate purpose of s. 239(1)(a)(i) and (a.1). As the Crown observes, the section applies to everyone "who attempts by any means" to commit murder if a firearm "is used in the commission of an offence" [emphasis added]. Had Parliament intended to restrict the provisions to situations in which firearms are actually fired, it could have said so by employing the verb "discharged" in place of "used", as it did in other sections of the Tackling Violent Crime Act (see ss. 3, 8, 17, 35, 40, 57 and 63).

[176] Moreover, it makes sense that Parliament would seek to deter all uses of a firearm in the context of attempted murder. The mere presence of a firearm during the commission of an offence escalates the potential for lethal violence. In R. v. Felawka, [1993] 4 S.C.R. 199, Cory J., writing for the majority, made the following observations about firearms, at p. 211 S.C.R.:

A firearm is expressly designed to kill or wound. It operates with deadly efficiency in carrying out the object of its design. It follows that such a deadly weapon can, of course, be used for purposes of threatening and intimidating. Indeed, it is hard to imagine anything more intimidating or dangerous than a brandished firearm. A person waving a gun and calling "hands up" can be reasonably certain that the suggestion will be obeyed. A firearm is quite different from an object such as a carving knife or an ice pick which will normally be used for legitimate purposes. A firearm, however, is always a weapon. No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence.

[177] Similarly, in R. v. Steele, 2007 SCC 36, Fish J. held, at para. 23: "The use of a firearm in the commission of a crime exacerbates its terrorizing effects, whether the firearm is real or a mere imitation."

[178] Lastly, the appellant's comparison between a beating with a gun and a beating with a baseball bat is unconvincing. Someone who attacks another person with a blunt object, whether it be a baseball bat, a lead pipe, a piece of wood, or a firearm, and who intends to kill that person, will undoubtedly be liable to a sentence well within the range set out in Tan. In any event, the use of a gun, as opposed to these other instruments, is more serious. As noted in Steele, the fact that the blunt instrument is a gun will exacerbate the seriousness of the situation -- in addition to its terrorizing capabilities, there is always the fear that the gun may end up being used in the manner for which it was manufactured, intentionally or otherwise.

[179] While this is sufficient to dispose of this aspect of the appellant's argument, we add the following observations. The appellant points to deterrence as the singular consideration in this analysis. However, s. 239 operates within the broader framework of Part XXIII -- Sentencing of the Criminal Code, especially the purpose and principles of sentencing in ss. 718 to 718.2. Specific and general deterrence are key objectives, reflected in s. 718(b). However, mandatory minimum sentences further other goals. In particular, s. 718(a) provides that a sentence may be imposed with a view to denouncing unlawful conduct and harm done to victims and the community.

[180] As discussed in the following section when we review the fitness of the appellant's sentence, general deterrence and denunciation are jointly responsible for the lengthy sentences routinely imposed for attempted murder. In R. v. M. (C.A.), [1996] 1 S.C.R. 500, Lamer C.J.C. described denunciation in the following way, at para. 81:

The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. Rep. 74, at p. 77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass".

[181] Denunciation applies to all cases of attempted murder with a firearm, whether or not the person is a criminal, gang member, ordinary citizen or a police officer. Indeed, given the serious trust reposed in police officers, the need to denounce the criminal misuse of a firearm may be even more compelling in these circumstances.

[182] In conclusion, s. 239(1)(a)(i) and (a.1) are not overly broad within the meaning of s. 7 of the Charter. Again, there is no need to resort to s. 1.

[183] The trial judge did not err in rejecting the appellant's constitutional challenges. He was entitled to sentence the appellant within the framework of s. 239 as a whole, including the mandatory minimum sentence available under s. 239(1)(a)(i).

(2) The fitness of the sentence imposed

[184] Having dismissed the appellant's constitutional challenge, the trial judge sentenced the appellant to six years' imprisonment. The appellant submits that a sentence beyond the five-year mandatory minimum sentence applicable to him was unjustified. He submits that the trial judge made errors in how he characterized the underlying facts of the offence, and how he applied the principles of sentencing. The Crown argues that the trial judge's reasons for sentence reveal no factual or legal errors, and that the sentence imposed was fit.

[185] We are not persuaded that the trial judge erred in how he characterized the appellant's offence. Nor did he err in the application of the principles of sentencing. He correctly identified denunciation and general deterrence as the paramount considerations in this case. The sentence of six years' imprisonment was manifestly fit, occupying the bottom end of the range identified in Tan. There is no basis to interfere.

(i) Facts relating to appellant

[186] At the time of the altercation with Mr. Yatim, the appellant was 30 years old. He was married with two children. He had been a police officer for three-and-a-half years.

[187] The trial judge acknowledged the appellant's previous good character, his achievement in becoming a police officer despite unfavourable economic circumstances, and the personal care needs of his parents. The trial judge accepted that the appellant was "a family man devoted to his wife and daughters" (para. 62). Moreover, the appellant had no prior criminal record and was not prone to violent behaviour. Overall, the trial judge recognized that the appellant's personal characteristics were "very positive and must be viewed as a significant mitigating factor" (para. 62). The trial judge held that the appellant was not in need of rehabilitation. He recognized that, given that the appellant would likely lose his job as a result of his conviction, and because of the intense adverse publicity his case had received, it was not necessary to assign any weight to specific deterrence (paras. 62, 67, 71).

(ii) Facts relating to the offence

[188] The trial judge concluded that the aggravating factors in this case significantly outweighed the mitigating features. He made certain factual findings and concluded that the appellant's moral culpability was high. The appellant challenges these findings. We can find no error.

[189] The trial judge concluded that the jury's verdict of acquittal on the count of murder was "consistent with the finding by the jury that Officer Forcillo believed on reasonable grounds that it was necessary to use lethal force for the purpose of self-preservation from death or grievous bodily harm" (para. 10). With respect to the count of attempted murder, the jury must have found that the appellant had the intent to kill Mr. Yatim and "at some point during the second volley [he] did not believe on reasonable grounds that it was either necessary or reasonable to discharge his firearm . . . in order to preserve his life or those under his protection from death or grievous bodily harm" (para. 11). The jury must have found that the use of force was excessive within the meaning of s. 26 of the Criminal Code.

[190] The trial judge made other findings that were relevant to his determination that the appellant's moral culpability was high. The trial judge heeded the limitations on fact-finding in the sentencing context, outlined in Ferguson, at paras. 16-18. We see no error in the manner in which the trial judge characterized the relevant facts.

[191] The trial judge rejected the appellant's submission that the jury's verdict on the attempted murder charge was consistent with a finding that the appellant was lawfully justified in firing one or more of the initial shots of the second volley. The trial judge's decision turned on whether, at the commencement of the second volley, Mr. Yatim posed an imminent threat, or merely a potential threat. He accepted that the appellant concluded that Mr. Yatim was an imminent threat. But he found this conclusion to be unreasonable. He rejected the appellant's evidence that he misperceived that Mr. Yatim was in the process of getting up when he fired the second volley. As the trial judge said, at para. 23, "the video is powerful evidence that demonstrates conclusively that what Officer Forcillo says occurred did not occur". Based on all of the evidence, the trial judge concluded that Mr. Yatim did not in fact present an imminent threat when he re-armed himself and the appellant fired the second volley (para. 22):

For the purpose of sentencing I am satisfied beyond a reasonable doubt that Officer Forcillo did not misperceive Mr. Yatim raising himself to a 45-degree angle attempting thereby to get up to continue the attack. It follows from this finding that given the evidence of Officer Forcillo, which is consistent with the video, his decision to shoot was based solely on his observation that Mr. Yatim had rearmed himself. However, based on Officer Forcillo's training that observation is consistent only with Mr. Yatim being a potential threat in which case Officer Forcillo was trained not to shoot. I am satisfied beyond a reasonable doubt that prior to and during the second volley that based on all the evidence Mr. Yatim's conduct was consistent only with him being a potential threat and not an imminent threat.

[192] The trial judge went on to find that, "at the commencement of the second volley and throughout the second volley", the appellant shot Mr. Yatim "precipitously" and "contrary to his training", which was to shoot only if there was an imminent threat (paras. 16, 25). In other words, the trial judge found that all of the shots fired at the prone Mr. Yatim during the second volley were "unreasonable, unnecessary and excessive" (para. 26). The trial judge also found, based in part on the appellant's testimony, that the appellant made no attempt at de-escalation after the first volley. Indeed, he said nothing to Mr. Yatim. He simply waited five to six seconds and fired again. He fired six more bullets at Mr. Yatim's centre mass with the intention of killing him (see paras. 33-37).

[193] There was an evidentiary basis upon which the trial judge could make each of these findings. The trial judge was entitled to reject the appellant's testimony that he believed that Mr. Yatim was getting up. He found the video evidence particularly compelling. While there was evidence that may have assisted the appellant on this issue, the trial judge was entitled to reject it, as the jury also appeared to have done. Lastly, the trial judge's conclusion that the appellant acted contrary to his training was also reasonable in the circumstances. Having rejected the proposition that the appellant reasonably concluded that Mr. Yatim posed an imminent threat, the only logical conclusion that the trial judge could reach was that the appellant's actions were not in accordance with his training.

(iii) Application of the principles of sentencing

[194] The appellant submits that the trial judge's erroneous assessment of the appellant's moral blameworthiness resulted in an "excessive focus on deterrence and denunciation with a complete disregard for the principle of rehabilitation". We disagree.

[195] Based on the factual findings that he made, the trial judge did not err in finding that the appellant's moral blameworthiness was high. As noted above in the discussion of the constitutional issues, a high degree of moral blameworthiness is inherent in the offence of attempted murder, particularly when a firearm is used. The trial judge's findings, reviewed in the previous paragraphs, only tend to highlight the seriousness of the offence.

[196] We see no error in the trial judge's reasoning that the appellant does not require rehabilitation. This conclusion was based on the appellant's personal characteristics and antecedents. The trial judge nonetheless treated those personal characteristics and antecedents as mitigating factors (see para. 67).

[197] Further, the trial judge properly focused on denunciation and deterrence as the governing principles. A distinguishing feature of this case, which separates it from other attempted murder cases, is the appellant's egregious breach of trust in using lethal force against a person who was not an imminent threat. This was underscored by the trial judge (see paras. 87, 90).

[198] Police officers are charged with enormous responsibilities to maintain order and to protect members of the public from harm. At the same time, they are granted special privileges and protections to enable them to discharge these duties. Police officers are provided with firearms. They are meant to be used to protect themselves and others, all within the bounds of reasonableness and necessity, and in accordance with police training. To this end, s. 25 of the Criminal Code furnishes police officers with special powers that are not available to ordinary citizens. Where this and related provisions (s. 34 of the Criminal Code) are found not to apply, a police officer will have abused his or her authority and breached the trust of the public in general, and that of anyone harmed along the way.

[199] This factor was critical to the Supreme Court's decision in Ferguson. As McLachlin C.J.C. observed, at para. 28, police officers are trained to respond properly to volatile encounters; they are held to a higher standard than would be expected of ordinary citizens. In these circumstances, the principles of denunciation and general deterrence become magnified in the sentencing process.

[200] As noted above in our analysis of the constitutional issues, in Ferguson, McLachlin C.J.C. held that the fact that the deceased initiated the violent encounter, leaving the officer with little time to consider his response, was offset by the position of trust that the officer held, and the fact that he had been trained to respond appropriately in the circumstances. The same considerations apply on appeal. While the jury at least had a reasonable doubt whether the appellant was justified in firing the shots that ultimately killed Mr. Yatim, it is clear that the second volley was clearly unnecessary and excessive. As the trial judge stated, the appellant's conduct in firing the second volley constituted a "fundamental failure to understand his duty to preserve all life and not just his own" (para. 53).

[201] In conclusion, we return to a theme addressed in the discussion of the constitutional issues above -- the moral blameworthiness inherent in the crime of attempted murder. To repeat the words of Lamer C.J.C. in Logan, at p. 743 S.C.R.: "Quite simply, an attempted murderer is, if caught and convicted, a 'lucky murderer'." See, also, R. v. Marriott, 2014 NSCA 28, 309 C.C.C. (3d) 305, at para. 111, leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 482. This truism has particular resonance in this case. A confluence of circumstances spared the appellant from a murder conviction and a mandatory life sentence.

[202] The second volley involved the appellant shooting six hollow point bullets at Mr. Yatim as he lay prone, on his back, attempting to hold onto his knife. At the time, Mr. Yatim was contained and alone on the streetcar. The appellant was not alone -- he had other officers with him, including Officer Kim beside him who also had his gun drawn but did not shoot. The appellant said absolutely nothing to Mr. Yatim before the second volley. The appellant knew from his training that Mr. Yatim did not pose an imminent threat to anyone merely by re-arming himself with a knife. He knew that he was not entitled to kill Mr. Yatim in these circumstances, yet he proceeded to fire six additional rounds fixed with that lethal intent.

[203] Apart from his previous good character and lack of criminal record, there was little else by way of mitigation, not even an expression of remorse. In all of the circumstances, the sentence of six years' imprisonment was fit.

[204] The appeal against sentence is dismissed.

H. Disposition

[205] The appeal against conviction is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

Application and appeal dismissed.

Notes

1 The appellant raised a third argument in his factum, alleging that the trial judge wrongly excluded evidence from other police officers at the scene about their training on the use of lethal force and their understanding about that training. Counsel made no oral submissions in support of this argument. The court did not call on the Crown on this issue. We see no error in the trial judge's ruling excluding the evidence. In any event, even if the evidence was admissible, it could not have had any effect on the verdict arrived at on the attempted murder charge.

2 An independent witness, who saw the confrontation from a different vantage point in a third-storey window, also testified that she saw Mr. Yatim starting to get up.

3 In written submissions, the appellant argued that in the further alternative, if the second volley constituted a "discrete transaction", as the appellant contends it must have to support a separate verdict, the attempted murder charge should not have been included in the same indictment as the murder charge. In this respect, the appellant relies on s. 589 of the Criminal Code. Section 589 prohibits joinder of other counts with a murder charge unless the accused consents or the charges arise out of the same transaction. Counsel effectively abandoned this submission in oral argument and we will make no further reference to it.

4 In making this submission, the Crown relied on a number of other cases from the Court of Appeal of Quebec. In our view, none of the other cases directly support the Crown's broad assertion that leave is always required to bring a fresh evidence application in criminal proceedings.

5 Section 7.3.5 of this court's most recent Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario (March 2017) addresses "Motions to Introduce Fresh Evidence". Section 7.3.5.1 indicates that this court has "broad discretion to receive further evidence on appeal when the court considers it in the interest of justice to do so: Criminal Code, s. 683. Such motions are heard by a three-judge panel of the court at the time the appeal is heard". In contrast to s. 54 of the Rules of the Court of Appeal of Quebec in Criminal Matters, s. 7.3.5 reserves the powers relating to fresh evidence for the panel hearing the appeal and is consistent with how this court addresses the application of s. 683 of the Criminal Code in practice.

6 The Act created mandatory sentences when a firearm is used in the following offences: criminal negligence causing death (s. 220(a)); manslaughter (s. 236(a)); discharge a firearm with intent (s. 244(2)); sexual assault with a weapon (s. 272(2)(a)); aggravated sexual assault (s. 273(2)(a)); kidnapping (s. 279(1.1)(a)); hostage taking (s. 279.1(2)(a)); robbery (s. 344(a)); and extortion (s. 346(1.1)(a)).

7 In Stubbs, the trial judge imposed a total sentence of 22 years: 16 years for attempted murder; 16 years concurrent for break and enter to commit attempted murder; four years consecutive for use of a firearm while committing an indictable offence; one year consecutive for possessing a firearm while prohibited from doing so; and one year consecutive for disobeying a court order.

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