Court of Appeal for Ontario

Date: 2021-07-22 Docket: C66363

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

John McRae Appellant

Counsel: Matthew R. Gourlay, for the appellant Andreea Baiasu, for the respondent

Heard: March 18, 2021 by video conference

On appeal from the conviction entered on June 14, 2018 by Justice Robert N. Beaudoin of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on June 20, 2018, with reasons reported at 2018 ONSC 4035.

Rouleau J.A.:

Overview

[1] The appellant stabbed his son causing his death. He was convicted of second-degree murder and sentenced to life imprisonment with a parole ineligibility period of 12 years. He appeals both conviction and sentence. For the reasons that follow, I would dismiss the appeal.

Facts

[2] At the time of the murder, the appellant, then 70 years old, and his son Michael, 51 years old, had for some time been living together in an apartment with a third roommate, Alain Chaput. The father and son relationship was a rocky one. Both struggled with substance abuse and had prior criminal records.

[3] On the day of the incident, July 7, 2015, the appellant began drinking at noon. Around 2:00 p.m., Mr. Chaput met the appellant at a bar, where they drank together. When they returned to the apartment, the appellant and Michael had a confrontation in the backyard. The appellant approached Michael and angrily confronted him about his failure to pay his share of the rent. This sparked an exchange of threats and insults with both men uttering threats to kill each other one day. Michael pushed the appellant down twice and the appellant hit Michael with small punches.

[4] Following this exchange, Mr. Chaput and the appellant went to a pub across the street, returning home around 5:45 p.m. Mr. Chaput ate dinner and went back to his room.

[5] A few minutes later, the appellant knocked on Mr. Chaput’s door and asked Mr. Chaput to call 911 because he had just stabbed his son. Mr. Chaput called 911 and asked for an ambulance at 6:40 p.m.

[6] The appellant had stabbed Michael twice in the upper abdomen with a butcher knife, each time plunging the knife to the hilt about 20 cm deep. He also cut the front of Michael’s neck, leaving a 15 cm long gash. That cut, however, was only a superficial injury. Death was caused by the stab wounds to the abdomen. Emergency surgery could not save Michael’s life and he was pronounced dead at the hospital at 9:35 p.m. that same night.

[7] There were several descriptions as to how the murder had been committed. Mr. Chaput testified that, immediately after the stabbing, when he asked the appellant what had happened, the appellant answered:

I just stabbed him. I was fed up with him. He’s keeping pushing me around, threaten to kill me and all that bullshit. Just fed up. I went there to stab him so I seen him, he was full of blood.

[8] Upon his arrest, the appellant told the police: “I came home. He kicked the shit out of me. I said, ‘I’m not going to stand for it no more.’” Then, as he was being escorted by the police out of the building, a neighbour asked the appellant: “Why did you do it?” The appellant replied: “He deserved it.”

[9] The next day, the appellant was interviewed by police at the station. He described what happened as: “Nothing happened. Just I come home and he was sitting out in the back drinking and that there and I flipped. And he pushed me down a couple of times and I said well I’ll get you back.” Later the appellant confirmed that he stabbed Michael when he was asleep because “I wanted my revenge I guess.” He further recalled that Michael woke up after being stabbed and asked: “What are you doing that for?” Toward the end of the police interview, the appellant said: “I just snapped. That’s why I should see a psychiatrist or something.”

[10] Eight months after the stabbing, on April 29, 2016, the appellant met with Dr. Helen Ward, a forensic psychiatrist, and spoke with her about the stabbing. He said that he went to his bedroom at 6:00 or 7:00 p.m. and pretended to be asleep for 20 minutes when Michael came in and said “I’ll kill you, you old bastard”, a threat which he had uttered before. The appellant remained in bed and waited until Michael was quiet. He then grabbed a knife from the block on top of the fridge and went over to Michael who was lying on the couch on his back, his eyes partially shut, and stabbed him once in the stomach. He told Dr. Ward that Michael then opened his eyes and said: “What are you doing?” to which the appellant replied: “I am putting an end to the argument.” He then stabbed Michael again. The appellant added: “and I think I cut his throat. I just couldn’t take it no more, just had my fill of it.”

[11] When the appellant saw Dr. Ward again on October 21, 2017, he told her that he remembered having an argument with Michael about the rent, and nothing else after that until he told Mr. Chaput to call the police. The appellant said that he was very drunk and did not remember Michael uttering any threat, and that he did not remember stabbing Michael.

[12] At trial, the appellant gave a different version. He said that he did not remember going to the pub for a second time, and that the next thing he remembered after the argument about the rent was Michael kicking open his bedroom door and saying: “You’re gonna die tonight you old bastard.” The appellant then looked for the baseball bat he used to keep in his bedroom, but it was gone. He went to the kitchen and grabbed the knife because he was scared. Michael had gone into the living room and was lying on the couch watching television. The appellant testified that he approached Michael who stood up and called his father: “a rotten something and then that’s when I shoved a knife in him. It was fast and he fell down on the couch. And then I went over to [Mr. Chaput’s] door”. The appellant described the situation as “it was either kill or be killed”. He acknowledged not mentioning Michael’s threat to kill him when interviewed by the police because “I was so used to it. I thought it was normal.”

[13] The trial judge charged the jury on self-defence and intoxication, as requested by the defence. The defence’s position was that the history of the relationship between the appellant and his son was crucial to understanding the July 7 killing, which the defence urged the jury to see as an act of self-defence after years of elder abuse and escalating violence. The Crown’s position was that the appellant stabbed his son with the intention to kill him, committing second-degree murder. The appellant was fed up with his son and his son’s lifestyle. He was angry and killed him as revenge for the backyard confrontation, not to defend himself.

[14] Neither the Crown nor defence made any serious reference to the partial defence of provocation. The only mention of it came in passing from the trial judge who, during the pre-charge conference, noted that: “There is no evidence of provocation so I eliminated references to provocation” from the rolled-up charge. Neither counsel objected.

[15] During deliberations, the jury asked a question about how anger may raise a reasonable doubt as to the mens rea for murder. Specifically, the jury indicated that they were “having an issue with the evidence of anger may raise [sic] a reasonable doubt whether, when he unlawfully killed Mike McRae, John McRae had either state of mind required for murder”. In discussing the appropriate response, both the Crown and defence acknowledged that the defence of provocation did not arise in this case. They agreed that the trial judge should repeat the rolled-up charge for the jury, specifying that: “anger is not a defence; anger only in combination with the other factors and on consideration of all the evidence that you’ve heard is for you to consider as whether or not he had either states of mind to commit the offence of murder”.

[16] The jury returned a verdict of guilty for second-degree murder and the appellant was sentenced to life imprisonment with a parole ineligibility period of 12 years.

Grounds of Appeal

[17] The appellant raises four grounds of appeal as follows:

1. the trial judge erred in failing to charge the jury on provocation;
2. the trial judge erred in dismissing the appellant’s Scopelliti and Corbett applications;
3. the trial judge erred by giving a special hearsay caution; and
4. the trial judge erred in his sentencing of the appellant by relying on the appellant’s position of trust as an aggravating factor and in imposing a parole ineligibility period of 12 years.

Analysis

(1) Did the trial judge err in failing to charge the jury on provocation?

[18] The appellant argues that there was an air of reality to the partial defence of provocation and that the trial judge erred in failing to charge the jury on it. The fact that provocation was not specifically raised by counsel did not absolve the trial judge of his duty in that regard.

[19] Under s. 232 of the Criminal Code, R.S.C. 1985, c. C-46, provocation provides a partial defence to an accused’s unlawful conduct in killing another human being where the killing is perpetrated as a result of a sudden event triggering a loss of self-control: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 9-12; R. v. Thibert, [1996] 1 S.C.R. 37, at para. 4. The defence consists of both objective and subjective elements. There must have been a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control, the objective element, and the accused must have acted upon that insult on the sudden and before there was time for the accused’s passion to cool, the subjective element: Tran, at para. 10, citing Thibert, at para. 4. The appellant correctly notes that a 2015 amendment to s. 232, which now requires that the provocative act also constitute an indictable offence punishable by five or more years’ imprisonment, does not apply in this case because the amendment came into force after the charged conduct: R. v. Singh, 2016 ONSC 3739, at paras. 43-44, citing R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22.

[20] According to the appellant, the defence of provocation had an air of reality in light of his evidence about what Michael had said to him prior to the stabbing. He testified that Michael had called him names and said he would “die tonight”. Such a threat can, the appellant submits, constitute provocation. Further, an act of provocation is not considered in isolation, but rather in the context of the course of events that led up to it, including the relationship between the parties.

[21] In this case, the context is one of a long abusive relationship between two men, including a confrontation earlier in the day. In the appellant’s submission, the jury was entitled to accept the appellant’s trial evidence that he “flipped” after Michael came into his room to threaten him and call him names. After being threatened while he lay on his bed, the appellant got up, went into the kitchen where he retrieved the knife and, upon confronting Michael, was insulted once again. This combination of threat and insult was, the appellant argues, sufficient to deprive an ordinary person of the power of self-control and, accordingly, satisfies the objective portion of the test for provocation.

[22] As for the subjective element of the defence, the appellant acknowledged that he was angry, but he also testified that he was scared. He argues that as long as there was some evidence that he acted in sudden response to provocation, the subjective element required for the defence of provocation had an air of reality and should have been left with the jury.

[23] The appellant further submits that trial counsel’s failure to ask for a provocation instruction did not relieve the trial judge of his obligation to leave the defence with the jury. It is an error of law not to leave provocation with the jury if the defence has an air of reality: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 51. On the facts of this case, the appellant argues that the jury could have been persuaded, or at least left with a reasonable doubt, that an ordinary person in the accused’s circumstances would have lost control when Michael made his final taunting threat. Furthermore, the air of reality was evident from the jury’s question.

[24] I disagree. It is well established that in considering whether a defence has an air of reality, the accused is entitled to the most favourable view of the evidence. It is assumed that the evidence relied upon by the accused is true. However, a mere assertion by the accused is not sufficient to put a defence to the jury: Cinous, at para. 98.

[25] As explained by McLachlin C.J. in R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at paras. 24 and 26:

An air of reality “cannot spring from what amounts to little more than a bare, unsupported assertion by the accused”, which is otherwise inconsistent with the totality of the accused’s own evidence: R. v. Park, [1995] 2 S.C.R. 836, at para. 35, per L’Heureux-Dubé J.

Defences supported only by bald assertions that cannot reasonably be borne out by the evidence, viewed in its totality, should be kept from the jury.

As I will explain, the record in this case supports neither the presence of the required objective nor subjective elements of the defence.

(a) No air of reality to the objective element

[26] The nature of the threat in this case is not such that an ordinary person would be deprived of self-control. Accepting the appellant’s evidence that Michael came to the appellant’s bedroom door and told him “I’ll kill you, you old bastard” or “You’re gonna die tonight you old bastard”, there is no evidence that this threat was accompanied by any physical assault or intention to follow through. In fact, after the alleged statement was made, Michael simply walked away. He went back into the living room, opened a beer, lay on the couch and started watching television. An ordinary person would not be deprived of self-control by a mere threat of future harm in those circumstances.

[27] Placing this threat in context is of no assistance to the appellant. By all accounts, the relationship between the appellant and his son was plagued by mutual insults and threats of violence for years without any significant injuries to either party. In other words, even steeped in the hostile dynamic of that relationship, an ordinary person would not lose self-control, as they would not have been shocked by the insult, nor would they have any reason to think that Michael was going to inflict immediate physical harm.

[28] As for the utterances the appellant claims that Michael made when the appellant came toward him carrying the knife, namely calling the appellant a “rotten something” and saying “what do you want you old bastard”, these were obvious and predictable reactions to the appellant’s confrontational conduct. Michael’s utterances lacked the element of sudden shock required to cause an ordinary person to lose self-control. Michael did not draw a weapon or make any aggressive gesture toward the appellant in the living room. His statements to the appellant were unsurprising given the fact that he was being confronted at knifepoint. A properly instructed jury acting reasonably could not have been persuaded that Michael’s conduct was sufficient to deprive an ordinary person of the power of self-control, nor could it have left the jury with a reasonable doubt.

(b) No air of reality to the subjective element

[29] In my view, the subjective element of the air of reality test has not been made out on the record. Specifically, the appellant’s evidence in this case does not provide a basis upon which the jury could believe or entertain a reasonable doubt that he lost self-control and that he acted on the sudden, stabbing Michael before there was time for his passion to cool. At no point did the appellant suggest that he lost the power of self-control or that he killed Michael in the heat of passion.

[30] When considered in the context of the whole of the evidence, the appellant’s evidence about his motivation for the killing to the effect that he “snapped” or “flipped” after Michael came into his room and threatened him is insufficient to give an air of reality to the defence of provocation. Even accepting the appellant’s evidence that he “snapped” or “flipped”, this isolated evidence is ripped from the context of the rest of the evidence and does not satisfy the subjective element of the test: R. v. Doucette, 2015 ONCA 583, 328 C.C.C. (3d) 211, at para. 31.

[31] In this case, it is apparent that the stabbing, when viewed in the context of all the evidence at trial, was not a sudden reaction on the appellant’s part. Although the appellant testified that there were only seconds between the threat and the stabbing, his own evidence shows that, after the threat, he took the time to look for the baseball bat he usually kept in his room, could not find it, and decided to go to the kitchen for a knife. He then went over to the couch where he confronted Michael. He not only stabbed him twice but went on to inflict a 15 cm cut to Michael’s throat. The isolated statements that he “snapped” or “flipped” are inconsistent with the appellant’s principal narrative as to how the murder was committed and are insufficient to give an air of reality to the defence of provocation. Viewed in the entire context of this case, the subjective element, acting on the sudden, is lacking.

[32] The appellant argues that the present case is similar to R. v. Gill, 2009 ONCA 124, 241 C.C.C. (3d) 1 and R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143. In both of those cases, this court held that provocation should have been left with the jury because the Crown, in arguing that the accused had acted out of anger, implicitly acknowledged that there was some evidence of provocation. In the appellant’s submission, the same argument was made by the Crown in this case, that is, that the appellant was fed up and angry at Michael and that was why he killed him.

[33] In my view, Gill and Angelis are quite different. In those cases, there was an undisputed element of suddenness in the sense that the appellant became enraged immediately before or during the fatal confrontation with the deceased. By contrast, in this case, the Crown did not suggest that the appellant was animated by sudden anger immediately before stabbing Michael to death. Instead, the Crown pointed to the appellant’s long-standing frustration and seething anger with Michael, which was aggravated by the confrontation hours earlier in the backyard. The stabbing was neither sudden nor immediate.

[34] In the final analysis and considering the totality of the evidence in this case, the trial judge and all counsel at trial correctly concluded that there was no air of reality to the suggestion that the appellant killed Michael in a sudden fit of anger before he had time to regain control. The trial judge did not err in failing to put the defence of provocation before the jury.

(2) Did the trial judge err in his Scopelliti and Corbett rulings?

[35] At trial, the appellant brought applications to adduce evidence of Michael’s criminal history pursuant to R. v. Scopelliti, (1981), 63 C.C.C. (2d) 481 (Ont. C.A.) and to exclude evidence of his own criminal history pursuant to R. v. Corbett, [1988] 1 S.C.R. 670.

[36] On the Scopelliti application, the appellant argued that Michael’s prior history of violent and criminal behaviour with the appellant and others was relevant to the appellant’s claim of self-defence. The Scopelliti application was brought before the defence had called its case, but the appellant undertook that he would testify and provided a short will-say statement. He further acknowledged that if the Scopelliti application was granted and evidence of Michael’s violent criminal behaviour admitted, he would have no basis upon which to resist the admission of his own criminal record. In essence, he argued that in the interest of fairness, the jury should receive a complete picture of both protagonists, including their violent and criminal history.

[37] The Corbett application was argued during a break in the appellant’s testimony in chief. The appellant opposed the introduction of his criminal record by the Crown on the basis that his convictions were dated and that the crimes involved did not speak to credibility. He argued that the introduction of his criminal record could only give rise to impermissible propensity reasoning.

[38] On the Scopelliti application, trial judge ruled that the evidence of Michael’s prior acts of violence that were known to the appellant was relevant and admissible. However, where the appellant had no “direct knowledge” of the prior acts of violence, the evidence would be excluded. He limited the Scopelliti application in this way on the basis that the appellant’s testimony about Michael’s aggression did not open the door wide to all of Michael’s past disreputable conduct.

[39] In his ruling on the Corbett application, the trial judge noted that the appellant had already introduced a substantial portion of his own criminal record through his testimony in chief. Because the appellant was the only surviving party to the final confrontation with Michael, his credibility would be central to the case and the jury should be presented with a complete picture, accompanied by the appropriate instruction. The trial judge therefore permitted the Crown to cross-examine the appellant on his criminal record without restriction.

[40] The appellant challenges both rulings. In the appellant’s submission, the trial judge’s Scopelliti ruling was wrong and prejudiced the appellant’s defence because a significant quantity of evidence pertaining to Michael’s violent disposition was never heard by the jury. This included Michael’s full criminal record, evidence of violence toward his former girlfriend that the appellant was unaware of and the evidence of a police officer about a February 2015 violent interaction between Michael and the police that occurred when the appellant was not present. In the appellant’s submission, all of this evidence was clearly relevant to self-defence. Its probative value exceeded any prejudice it might cause.

[41] The appellant also maintains that the trial judge’s error was compounded by his giving a cautionary midtrial instruction to the jury in which he told the jury that Michael’s extraneous misconduct was irrelevant.

[42] As for the Corbett application, the appellant submits that, because he excluded Michael’s criminal record, it was an error for the trial judge to then deny the appellant’s Corbett application and permit the Crown to cross-examine the appellant on the entirety of his criminal record.

[43] I would not give effect to these submissions. As submitted by the Crown, even if the ruling on the Scopelliti application was an error, the jury ended up hearing substantially all of the evidence of Michael’s violent history that the defence first sought to adduce through the Scopelliti application. The Scopelliti ruling had no significant impact on the outcome of the trial and cannot be said to have occasioned a substantial wrong or miscarriage of justice. Accordingly, to the extent of any error in the trial judge’s Scopelliti ruling, I would apply the curative proviso, as urged by the Crown.

[44] The appellant was allowed to testify that he and Michael committed a robbery together and that Michael went on to commit robbery of a liquor store and of a Dairy Queen. He also testified about Michael’s fight with a police officer at a liquor store. Michael’s former girlfriend testified to having been threatened by Michael should she take their daughter away, that the threats were getting out of hand and that he was getting more violent. Finally, the fact that Michael had been to the penitentiary came out in evidence, and his criminal record appears to have been put in as an exhibit at trial, possibly, as the Crown suggests, as an inadvertent attachment to the appellant’s criminal record. The appellant simply suffered no prejudice as a result of the Scopelliti ruling.

[45] I also agree with the Crown that, in the context of this case, the trial judge’s midtrial instruction to the jury concerning Michael’s extraneous misconduct would have had no effect on the appellant’s claim of self-defence. The main hurdle for the appellant’s self-defence claim was not that Michael would utter threats and become verbally abusive when drunk. There was plenty of evidence to that effect. The difficult issue was whether the appellant’s act of stabbing Michael in response to the threat was reasonable in the circumstances where Michael had left and returned to the living room to watch television. Even on the most favourable view of the appellant’s evidence, Michael was not the aggressor at the time of the stabbing. Evidence that Michael had robbed a liquor store, been belligerent with the police or had verbally threatened his girlfriend would have had no impact on the jury’s assessment of the reasonableness of the appellant’s reaction purportedly in self-defence.

[46] Finally, given that the evidence of Michael’s bad character and criminal conduct was heard by the jury, I see no error nor any prejudice arising from the trial judge’s dismissal of the Corbett application. The jury received a “warts and all” picture of both father and son, as the defence had originally sought. The exclusion of the appellant’s criminal record would have resulted in an imbalance. I would not give effect to this ground of appeal.

(3) Did the trial judge err by giving a special hearsay caution?

[47] The appellant argues that the trial judge erred by characterizing Michael’s utterances on the day of the murder as hearsay and by instructing the jury that it should treat them with special caution because Michael was not under oath or available for cross-examination. The appellant places particular emphasis on the following passage from the trial judge’s jury charge:

First, you have to decide what, if anything, Michael McRae said to John McRae. In deciding whether Michael McRae said these things, or any of them, you should use your common sense. Take into account the condition of Michael McRae and of the witnesses at the time of the conversation, the circumstances of when the conversation took place, and anything else that may make the witness’s story more or less believable.

If you find that the witness has reliably reported any or all of what Michael McRae said, you may use those parts of the witness’s testimony to help you decide the case. Do not use what you conclude the witness has not – do not use what you conclude that the witness has not reliably reported.

You should be cautious when you determine how much or how little you rely on this evidence and of what you find Michael McRae said to any witness to decide this case. It may be less reliable than other evidence that has been given. Michael McRae was not under oath or affirmation. He did not promise to tell the truth. You did not see or hear Michael McRae testify, although you heard his voice on the 911 call. He could not be cross-examined here like the other witnesses who testified before you. [Emphasis added by appellant.]

[48] The appellant explains that Michael’s utterances were not adduced for the truth of their content, so the hearsay rule was inapplicable. It did not matter if the threats issued by Michael were true in the sense that they would have actually been carried out. What mattered was whether the appellant perceived them as being serious. The threats gave support to the appellant’s claim of self-defence.

[49] In support of this submission, the appellant relies on R. v. Delellis, 2019 BCCA 335. In that case, as here, the accused claimed self-defence. The deceased was a drug dealer who had threatened the accused about a week prior to the incident. The evidence of threats made by the deceased was given by the accused’s girlfriend and, in his charge to the jury, the trial judge cautioned the jury about the limitations of this evidence. The caution was due to the lack of cross-examination. The trial judge urged the jury to “consider [the evidence] carefully before giving [it] the weight you think it deserves” and specified that “[e]ven if you find that [the witness] accurately reported the statements made to her by [the deceased], you must still determine whether [the deceased] was being truthful at the time.”

[50] The Court of Appeal in Delellis held that the trial judge’s instruction amounted to reversible error notwithstanding the lack of a defence objection. The issue according to the Court of Appeal was not whether the threat was truthful but whether it was in fact made. In undermining the ability of the defence to rely on this important evidence, the instruction amounted to reversible error.

[51] In my view, on the facts of this case, the cautionary instruction did not undermine the appellant’s defence. The parties at trial agreed that Michael’s statement should be treated as admissible hearsay and they approved of the proposed jury instruction in that regard. It is not at all clear that a detailed instruction on the non-hearsay-purpose use of those statements would have assisted the appellant. The trial judge would have been required to remind the jury that Michael’s statements may or may not have been true. This would in turn emphasize that we do not know if Michael meant to carry out the threat and, in fact, that he had never carried out earlier threats. The warning would call into question both the sincerity and the reasonableness of the appellant’s apprehension of harm.

[52] Moreover, the present case is distinguishable from Delellis as the impugned hearsay instruction did not undermine the jury’s assessment of the appellant’s claim of self-defence. First, the instruction concerned Michael’s statements in the afternoon before the murder and the statements made by Michael that could be overheard when Mr. Chaput made the 911 call. The instruction did not specifically concern the threat made in the evening at the bedroom door, which was the basis of the appellant’s self-defence argument. Second, and more importantly, the jury in this case was not instructed that they first had to determine whether Michael’s afternoon threats were true before considering them for the benefit of the appellant. The trial judge’s focus was on the fact of Michael’s threats rather than their veracity:

If you find that the witness has reliably reported any or all of what Michael McRae said, you may use those parts of the witness’ testimony to help you decide the case. Do not use what you conclude the witness has not reliably reported.

[53] The trial judge then added a standard warning to the effect that Michael was not present at trial, did not testify under oath and did not promise to tell the truth. This added caution was not an invitation to discount Michael’s statements if the jury determined they were untrue. The trial judge immediately returned to the issue of whether the witness reporting Michael’s words could be believed:

In deciding how much or little of a witness’s testimony about what Michael McRae said you will believe and rely upon, you might ask yourselves questions such as: Would the [witness] have any reason to make up the story about what Michael McRae said? Might the witness be mistaken about what Michael McRae said, or might the witness have put his or her own interpretation on what Michael McRae said?

[54] Crucially, the trial judge did not take the additional step, like the trial judge in Delellis, of adding: “[e]ven if you find that [the witness] accurately reported the statements made to her by [the deceased], you must still determine whether [the deceased] was being truthful at the time”.

[55] Further, the trial judge’s later instructions on self-defence made no reference to the earlier hearsay instruction. Self-defence was not made dependent on the truth of Michael’s threats. Rather, the jury was properly instructed that the appellant was entitled to be mistaken in his belief about Michael’s threatened use of deadly force.

[56] The jury charge on self-defence contained a review of the relevant evidence, including the history of verbal abuse, threats and fights between Michael and the appellant, Michael’s threat during the afternoon confrontation and the appellant’s testimony that, shortly before 6:40 p.m., Michael threatened to kill him later that night. None of the evidence in this portion of the charge was qualified or discounted in any way as a result of Michael’s statements being hearsay. Accordingly, the instruction did not undermine the defence’s ability to rely on self-defence in this case.

(4) Did the trial judge err in sentencing?

[57] The appellant argues that the trial judge erred in finding that the aggravating factor set out at s. 718.2(a)(iii) of the Criminal Code applied because Michael was dependent on the appellant and the appellant stood in a position of trust towards Michael. Further, in the appellant’s submission, the trial judge erred in exercising his discretion in setting the parole ineligibility period at 12 years for this 73-year old offender, who was in poor health.

[58] I see no basis to interfere with the sentence imposed. As found by the trial judge, this was a cruel and horrific murder. The appellant stabbed his son, who was apparently sleeping, twice in the abdomen, plunging the butcher knife up to the hilt each time. There was no clear expression of remorse from the appellant who, upon arrest, suggested that his son “deserved it”.

[59] As for the finding that the appellant stood in a position of trust, this court has generally not insisted upon a narrow approach to the interpretation of s. 718.2(a)(iii). See R. v. Orwin, 2017 ONCA 841, at paras. 54 and 57; R. v. Hamade, 2015 ONCA 802, at paras. 28-30, and R. v. C.R., 2010 ONCA 176, at paras. 84-86. In this case, Michael was very dependent on his father, with whom he had lived most of his adult life. There is no question that it was by exploiting an element of trust that the appellant was able to kill his son while he was in a vulnerable position, lying on the couch in their shared apartment.

[60] The trial judge considered the appellant’s age and poor state of health and, weighing these together with other relevant factors, exercised his discretion to set the parole ineligibility at 12 years. I see no error in that regard.

Conclusion

[61] For these reasons, I would dismiss the conviction and sentence appeals.

Released: July 22, 2021 “P.R.” “Paul Rouleau J.A.” “I agree S.E. Pepall J.A.” “I agree L.B. Roberts J.A.”