DATE: 20020605 DOCKET: C32981
COURT OF APPEAL FOR ONTARIO
WEILER, CHARRON and SHARPE JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Thomas D. Galligan, for the respondent
Respondent
- and -
SEAN MIGUEL CURRIE
Melvyn Green and Jonathan Dawe, for the appellant
Appellant
Heard: March 26, 2002
On appeal from the conviction entered by Justice David M. Humphrey sitting with a jury, dated April 8, 1999 and from sentence imposed by Justice Humphrey dated April 12, 1999.
CHARRON J.A.:
I. Overview of the Appeal
[1] On May 13, 1997, the appellant shot the victim David Francis at close range in the back of the head. Remarkably, Francis escaped serious injury. The shooting occurred in broad daylight, outside the Scarborough provincial courthouse. The appellant admitted that he was the shooter. He was charged with attempted murder. Approximately a year earlier, Francis and others had allegedly shot and wounded the appellant. Francis was charged with attempted murder in relation to that shooting and the appellant testified at his trial. However, in March 1997, Francis was acquitted. It was the Crown’s theory at trial that the appellant shot Francis in revenge for the earlier shooting. The defence maintained that the appellant had acted in self-defence.
[2] The main issue in this case is whether there was an air of reality to the defence of self-defence on the facts of this case. Humphrey J., sitting with a jury, held that there was not. Consequently, he refused to admit expert opinion evidence in support of this defence and did not leave it with the jury for their consideration. The sole issue for determination by the jury was whether the appellant had the requisite intent to kill. Following the jury’s verdict of guilt, the appellant was convicted of attempted murder and sentenced to 8 years imprisonment in addition to 23 months of pre-trial custody.
[3] The appellant appeals from conviction and sentence. The grounds of appeal against conviction relate to: a) the trial judge’s refusal to leave the defence of self-defence to the jury; b) the exclusion of the proposed expert evidence, both on the issue of self-defence and on the issue of intent; c) alleged improper interference by the trial judge in the trial process; and d) alleged improper remarks by Crown counsel in her closing address. Alternatively, the appellant seeks to appeal his sentence on the ground that it is excessive.
II. The Evidence at Trial
a) The events leading up to the May 13, 1997 shooting
[4] The appellant was known to the police as a member of a gang called the Malvern Posse. Sometime in the spring of 1996, there was a falling-out between six members of the gang; the appellant and Tyrone Edwards in one faction, the victim Francis, Peter Honegan, Elrick Christian, and Garfield Chambers in the other faction. The falling-out allegedly arose out of an incident at a basketball game when one member of the gang had shown disrespect to another member. As a result of the falling-out, several shootings followed, leading up to the shooting on May 13, 1997. These shootings can be briefly described as follows.
[5] On April 27, 1996, the appellant was walking through a parking lot when shots were fired at him from a parked car. He was struck over the eye by a bullet fragment and required surgery to have the fragment removed. The appellant did not get a clear view of the men who shot him but believed that Francis was responsible. He testified, however, that he did not reveal his suspicions to the police because he feared for his life.
[6] On June 6, 1996, a shot was fired at the appellant’s friend, Tyrone Edwards. Edwards escaped uninjured. It was believed that Francis and Honegan were responsible for this shooting, but no arrests were made or charges laid in respect of this incident.
[7] On July 3, 1996, the appellant was ambushed as he drove from Edwards’ house on Hillcroft Drive in Markham, Ontario. As he drove away, three men emerged from hiding and began shooting. Some thirty bullets hit the appellant’s vehicle, and he was struck in the head, back and shoulder, causing him to crash his vehicle into a nearby house. His injuries required hospitalization for several days and subsequent surgery on his hand. The appellant and Edwards told the police that the shooters in the Hillcroft incident were Francis, Honegan and Christian. Francis and Honegan were arrested and charged with attempted murder.
[8] Before Christian could be arrested for the Hillcroft shooting, he himself was shot and killed, on August 3, 1996, at the Caribana festival in Toronto. Two bystanders were also wounded in that incident: a man from New York was shot in the arm; a woman from England was left paralyzed. Edwards was arrested and charged with first degree murder in relation to Christian’s death. He was ultimately acquitted.
[9] Although Francis and Honegan remained in custody following their arrest for the Hillcroft shooting, both the appellant and Edwards expressed ongoing concerns about their safety to one of the investigating officers, Detective-Constable Freemantle. The officer believed that they were indeed in danger of retribution and applied on their behalf for admission to the witness protection program. Neither was taken in the program. The appellant and Edwards also asked Detective Freemantle about obtaining bullet-proof vests. The officer advised them of a place where they could purchase such protective gear. The officer believed that the three members of the gang who were in prison at the time, Francis, Honegan, and Edwards, could be in danger as well and he therefore requested the prison authorities to place them in protective custody. Detective Freemantle and two other officers involved in the investigation were also concerned for their own safety. Consequently, they sought and were granted permission to carry their firearms off-duty.
[10] The appellant testified for the Crown at the preliminary hearing and the trial with respect to the Hillcroft shooting. Edwards also testified at the preliminary hearing but refused to testify at the trial. Both Francis and Honegan were acquitted. Sometime after the acquittal, the appellant told another investigating officer, Detective Miles, that he feared for his life, that he had changed his telephone and pager numbers, and that he was still wearing his bullet-proof vest. The appellant testified that it was at that time that he, for the first time, bought a handgun. About two weeks after Francis and Honegan were acquitted, Francis and some other men drove by the appellant’s girlfriend’s house and pointed at her car. After this, the appellant moved away from where he had been living in Scarborough.
b) The May 13, 1997 shooting
[11] The day before the shooting, the appellant was pulled over by a police officer for a seat belt violation. As the appellant’s license was suspended for unpaid fines, the police officer issued him a ticket notifying him of the suspension and requiring that he pay the fines to reinstate his license. Although the address of the courthouse in Newmarket was noted on the ticket, the appellant was advised that he could pay the fines at any office of the Ministry of Transportation. The appellant testified that on the next day, May 13, 1997, he drove to the Scarborough courthouse for the purpose of paying his fines.
[12] The appellant parked the vehicle at the large strip mall in which the Scarborough courthouse is located, some distance away from the courthouse itself. He was driving a rental vehicle at the time. He testified that he received a call on his pager as he drove to the courthouse and that he went into a convenience store adjacent to the courthouse to use a pay phone. The store owner recalled that a black man, wearing a beige baseball cap, came into his store shortly before noon, bought a coffee and got change for the phone. After using the phone, the man stood at the front of the store. He “looked nervous” and appeared to be trying to decide something. A court services officer, who was in the store on a break, also noticed a black man come into the store, acting “antsy”. The court services officer testified that the person was so noticeable that she mentioned to the store owner that “he was a strange guy.”
[13] The appellant testified that just as he was about to walk out of the store, he saw Francis’ children walk by outside. He jumped back into the store and then saw Francis’ girlfriend. He testified that he “got paralyzed with fear” thinking “where there’s smoke there’s going to be fire, so what if [Francis is] here?” He tried to act normally, went to the back of the store and pretended to use the phone, all the while wondering what he should do if Francis was there. He tried to calm himself, said a few prayers and decided to just go the courthouse to pay his fines. As he walked out of the store, he saw Francis’ mother. He ran back into the store, “debating and debating what to do” thinking “what if [Francis] is here? What if he saw me already?” He then made up his mind that he would “sneak by his mother, get to the courthouse, pay [his] fine and get out of there.”
[14] A bystander testified that shortly after he passed by the front of the convenience store, he noticed that a person was following him closely, no more than three feet behind him. This made him feel uncomfortable and he glanced at the person over his shoulder. The person continued to follow him right to the entrance of the courthouse. The bystander then heard a bang and saw Francis fall right at his feet. He turned around and saw the person who had been following him. The person looked at him for a second, then turned and ran away. The bystander believed, based on where Francis and the others were standing, that he had probably been used by the shooter as a human shield.
[15] Francis and his family had been at the courthouse for a bail hearing for Francis’ brother. Francis was talking to his mother in front of the courthouse, giving her some change so she could take the bus home when the appellant walked up behind him and shot him in the back of the head, at the base of the skull. According to the treating physician, Francis was “extremely fortunate.” The bullet appeared to have ricocheted off the bone at the back of the head and to have exited behind Francis’ ear. The shot could have resulted in serious brain damage and death.
[16] The appellant described the events after he decided to leave the store, go to the courthouse, and pay his fine as follows:
Q. Okay; and then what happened?
A. Attempted to do that [sneak by Francis’ mother, pay his fine, and leave]. When I attempted to do that, walked outside again, started walking and then I look up and there he is.
Q. There who is?
A. Dave Francis.
Q. Oh, okay?
A. From there it was just like, it was just like automatic. I just found myself drawn to him.
THE COURT: Q. I’m sorry?
THE WITNESS: A. I just felt myself draw [sic] to him. Like, I can’t describe to this day; you know? It was just, like, reminded me of the night when I was in the car, leaving Tyrone’s house, and I got shot and got paralyzed, and I just saw myself got shot and go crashing into the house.
BY MR. KENKEL:
Q. So then what happened?
A. I shot him, him, in, in his head.
Q. And why did you do that?
A.. I was in fear. I wasn’t in control of myself
Q. What happened after that?
A. I ran.
[17] The appellant turned and ran towards his car. He passed two women who were standing outside the courthouse. When he saw them, he said “oh shit” and ran away. He threw away the baseball cap he had been wearing and donned the hood of his jacket. He got into the car and drove off. The car was found abandoned in a parking lot one or two kilometers away. The baseball cap was found and identified by the store owner who advised the police of the man he had seen in his store. As a result of this information, the police took fingerprints off the telephone in the convenience store; they were identified as the appellant’s.
[18] Following the shooting, Francis went to the police and identified the appellant as the shooter. Francis testified at the appellant’s preliminary hearing. At trial, however, he claimed that he could not remember the shooting or identify the appellant as the shooter. The trial judge granted the Crown’s application to declare Francis a hostile witness and allowed both Francis’ preliminary hearing testimony and his videotaped statement to the police to be read in evidence for the truth of their contents.
c) The proposed expert testimony
[19] Following the appellant’s testimony, the defence sought to call a psychologist, Dr. Keith Travis, to give opinion evidence regarding post-traumatic stress disorder. A voir dire was held to determine the admissibility of the proposed evidence. The gist of the evidence was the following.
[20] Dr. Travis testified as to his experience in treating persons who suffer from post-traumatic stress disorder as a result of having been exposed to traumatizing or horrifying events. Over a period of over twenty years, he dealt with a broad spectrum of victims including members of the military, police officers, victims of violence, motor vehicle accident victims, and fire victims.
[21] Dr. Travis testified that he had been given an outline of the relevant events by defence counsel. Based on this information, he analyzed the facts underlying the offence and formed a preliminary diagnostic picture listing the kinds of conditions or diagnoses that would possibly account for the problematic behaviour. First, he wanted to assess the appellant’s intelligence because, in his view, the act was “not very well planned or well executed”. He also wanted to assess whether the appellant had suffered any brain damage as a result of the 1996 shooting. Finally, he considered the possibility of post-traumatic stress disorder and provided defence counsel with a manual on this disorder. After this preliminary assessment, he met with the appellant on April 14, 1998 at the Metro Police Detention Centre and administered a number of psychological tests, including an intelligence test.
[22] Based on his assessment, Dr. Travis concluded that the appellant was of low average intelligence and that there were no signs of organic impairment or brain damage. He also concluded that a number of psychological symptoms were consistent with his preliminary diagnosis of post-traumatic stress disorder. In particular, he described the appellant as “a fearful man who has multiple fears and avoidant tendencies”. Dr. Travis described the usual person who suffers from post-traumatic stress disorder as one who is “highly anxious”, “showing heightened physiological arousal” and “hypervigilance”.
[23] Dr. Travis was asked for his opinion on the appellant’s state of mind at the time of the shooting of May 13, 1997. His opinion on this issue is of particular relevance to the grounds of appeal raised by the appellant and I will therefore describe his testimony in some detail.
[24] In answer to counsel’s query on the state of mind of the appellant at the time of the shooting, Dr. Travis first expressed the view that it made no sense to shoot somebody in broad daylight at a place where it is highly probable that one is going to be recognized. He also found it puzzling that only one shot was fired even though the revolver had the capacity for many shots.
[25] Counsel then read to the witness part of the appellant’s testimony about the shooting and asked Dr. Travis to comment on this evidence. Dr. Travis described how the appellant felt trapped behind the wheel of his car in the earlier 1996 shooting and how in many ways he would have been “psychologically trapped” on May 13, 1997. He stated that there was evidence to support that the appellant “was trapped into an approach avoidance conflict”. He explained the latter statement as follows:
Q. And what does that, and what does that mean?
A. Well, to approach the court house, to, with a view toward paying the fines and clearing, clearing that end of the agenda, but at the same time to avoid the proximity to the actual man who had reportedly attempted to kill him on several occasions --
Q. Yes?
A. -- he was caught in, in that.
Q. Okay?
A. He was certainly adrenalized and he talks about his heart was pumping and he was energized and he said that he, he told me that he felt exactly like what it was like -- and he said this very spontaneously -- he said that this was like the, like the feeling he had when he was being shot in the Markham incident.
Q. Now, does that make any sense in terms of his, this diagnosis of post-traumatic stress, or how does the, does that relate at all to that or not?
A. Um, yes, it does, uh, because we expect that under circumstances where one has proximity to the, the original perpetrator, the closer you get to that the more that one would expect the anxiety level to go up and the more the physiological processes are likely to get out of hand; and the more likely it is that one is going to fall back on poor judgment, inflexible responses and things like that.
Q. I was just going to ask you that next. What effect, if any, would that, would this circumstance and, have on his ability to make judgments at that time or make, perceive the choices?
A. I think it’s highly likely that his, his perspective would have been impaired, that he would probably be responding to the situation in a highly inflexible kind of way. He wouldn’t be looking at his, his options in the clearest of ways. He would be reacting rather than adhering to a well, a well-thought out plan.
Q. Let me ask you as well with respect to, on another type, with respect to his ability -- and if you can comment on this or not, you let me know --?
A. Yes?
Q. At that time he’s charged with attempted murder and one of the criteria in that, in that charge, is the ability to formulate the intent to kill at the moment --
A. Yes?
Q. -- moment of the shooting: um, do you have any comment on whether, on his ability to do, formulate that intent at that time?
A. Under such circumstances I would say that, I would have significant doubts about his ability to formulate the intent to kill.
III. The Trial Judge’s Rulings
[26] Following the voir dire on Dr. Travis’ testimony, the defence sought two rulings. First, it was argued that the defence of self-defence should be left with the jury. In support of this argument, counsel relied on s. 34(2) of the Criminal Code and on the decisions of the Supreme Court of Canada in R. v. Lavallee, [1990] 1 S.C.R. 852 and R. v. McConnell, [1996] 1 S.C.R. 1075 rev’g (1995), 1995 ABCA 291, 32 Alta. L.R. (3d) 1 (C.A.). I will review s. 34(2) and these decisions later in these reasons. Second, counsel submitted that the expert evidence should be admitted in support of the defence of self-defence, or alternatively, to assist the jury in determining the question of intent.
[27] The trial judge ruled that there was no air of reality to the alleged defence on the evidence. The trial judge distinguished the two cases relied upon by defence counsel on the basis that the accused in each of those cases, unlike the appellant, had no choice and was trapped in a situation that was not of his or her own making. Further, while the apprehended assault need not be imminent, in Lavallee and in McConnell, each accused apprehended a deadly attack “to take place before the day was out, not at some unspecified time in the future.” The trial judge held that, while it was clear that the appellant was afraid of Francis and that he had good reason to be, the circumstances surrounding the shooting on May 13 did not “conjure up even a faint glimmer of self-defence”. He stated further:
Unlike the cases referred to, the accused in this case was a free agent. He had choices to make and he made them. Not only was he not in a kill-or-be-killed situation, his choices led to his confrontation with Francis.
[28] The trial judge then considered the proposed expert testimony and stated that, in his view, Dr. Travis’ testimony did not touch upon the issue of self-defence and, consequently, did not assist the appellant in giving an air of reality to the defence. On the question of intent, the trial judge noted that “the bottom line” of Dr. Travis’ opinion was that he doubted that the appellant could have formulated the intent to kill. This opinion, however, was not based on any “psychological component” but on matters of common sense in respect of which the jury needed no assistance. The trial judge concluded that it would be wrong to allow the witness “assuming the mantle of an expert, a scientist, to tell this jury that he personally doubts whether the accused would have formulated the intent to kill.”
IV. Analysis
- The Conviction Appeal
[29] As indicated earlier, the appellant raises four grounds of appeal against conviction. He submits that the trial judge erred in:
a) refusing to leave self-defence to the jury;
b) excluding the proposed expert evidence;
c) improperly interfering in the trial process; and
d) failing to instruct the jury to disregard certain remarks made by Crown counsel in her closing address.
[30] I will deal with each ground in turn.
(a) The Defence of Self-Defence
[31] The appellant submits that the trial judge erred in finding that the defence of self-defence had no air of reality. He submits that there was evidence in support of each of the constitutive elements of self-defence under s. 34(2) of the Criminal Code, so as to require that the defence be left for the jury’s consideration. Subsection 34(2) reads as follows:
- (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
[32] The Supreme Court of Canada has recently considered the air of reality test and its application to the defence of self-defence under s. 34(2) in R. v. Cinous, [2002] S.C.C.29. The Supreme Court reiterated that the question to be asked is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. Whether or not there is an air of reality to a defence is a question of law for the trial judge to determine. The trial judge has a dual function with respect to this test: see Cinous at para. 51. First, the trial judge must put to the jury all defences that arise on the facts, whether or not they have been specifically raised by the accused. Second, the trial judge has a positive duty to keep from the jury defences lacking an evidential foundation. In the majority judgment, the Court stated that “[i]t is an error of law to put to the jury a defence lacking an air of reality, just as it is an error of law to keep from the jury a defence that has an air of reality”: see para. 55.
[33] The application of the governing test to the particular facts in Cinous is particularly instructive because there is much similarity between those facts and the facts in this case. The facts can be briefly summarized as follows.
[34] Cinous was charged with the first degree murder of a criminal accomplice, Mike. The accused testified that he and his friend Kent had been involved with Mike in the theft and resale of computers along with another accomplice, “Ice”. The accused testified that, about a month before the killing, he decided that he would have no more contact with Mike or Ice because he was convinced that Mike had stolen his gun. He therefore told them that there would be no more thefts. The accused also testified that he began to hear rumours that Mike and Ice wanted to kill him and he was warned to watch out for them. Mike and Ice nonetheless continued to contact the accused, wanting to commit thefts with him. On the day of the killing, the accused finally agreed to meet with them that evening at his apartment.
[35] Cinous testified that when Mike and Ice arrived, they kept their jackets on and whispered to one another as they sat in the living room. He also saw Ice constantly placing his hand inside his coat. This conduct made the accused suspicious that the two were armed. The accused said that he decided to participate in the theft to see if they really intended to kill him. They left the apartment and got into the accused’s van. The accused said that he knew that the two men wanted to kill him when he saw that Ice had on different gloves than the ones he had earlier and Mike had surgical latex gloves. In addition, Ice avoided making eye contact with him and kept touching his jacket as if he had a gun. Cinous testified he was sure that he was going to be killed and that the shot would more than likely come from Mike who was sitting behind him.
[36] Cinous, who was driving the van, decided to pull into a populated and well-lit gas station where he bought a bottle of windshield washer fluid. After returning to the van, he opened the back door, “saw the opportunity”, pulled out his gun and shot Mike in the back of the head. The accused testified that this was an instinctive reaction to a situation of danger. He said that it did not occur to him to run away or to call the police.
[37] At trial, the trial judge allowed the defence of self-defence to be put to the jury. The accused was nonetheless found guilty of second degree murder. On appeal, the Court of Appeal for Quebec held that the defence was not properly explained to the jury and ordered a new trial. On further appeal, the Supreme Court of Canada held that there was no air of reality to the defence of self-defence and that the trial judge’s error in charging the jury was therefore immaterial. Consequently, the appeal was allowed and the conviction was restored.
[38] The Supreme Court held that in order to meet the test for self-defence under s. 34(2), there must be an evidential foundation with respect to each of the three constitutive elements of the defence under that provision: (i) the existence of an unlawful assault; (ii) a reasonable apprehension of a risk of death or grievous bodily harm; and (iii) a reasonable belief that it is not possible to preserve oneself from harm except by causing grievous bodily harm to, or killing, the adversary. Each of the three elements of the defence has both a subjective and an objective component (para. 94):
The accused’s perception of the situation is the “subjective” part of the test. However, the accused’s belief must also be reasonable on the basis of the situation he perceives. This is the objective part of the test. …With respect to each of the three elements, the approach is first to inquire about the subjective perceptions of the accused, and then to ask whether those perceptions were objectively reasonable in the circumstances.
[39] The Supreme Court of Canada, by majority decision, held that the air of reality test must be applied to both subjective and objective components of the defence. Arbour J. (Iacobucci and Major J.J. concurring), in dissent, was of the view that, while reasonableness constitutes a legal requirement of self-defence under s. 34(2), the matter was one for exclusive determination by the jury. This view was rejected by the majority (para. 97):
There is no authority for the proposition that reasonableness is exempt from the air of reality test, or that evidence satisfying the air of reality test as the subjective component of defence will automatically confer an air of reality upon the whole defence. Moreover, we consider that the introduction of such a requirement would constitute an unwarranted and illogical break with the rationale underlying air of reality analysis. The long-standing requirement is that the whole defence must have an air of reality, not just bits and pieces of the defence.
[40] The reasonableness of the accused’s perceptions was the crucial issue in Cinous and the majority defined the question for the trial judge as follows (para. 96):
The difficult issue in this case is whether there is some evidence upon which a properly instructed jury acting reasonably could have concluded that the accused’s purported perceptions were reasonable under the circumstances. Since reasonableness is inherently incapable of being established by direct evidence, the key question is whether there is evidence on the basis of which reasonableness could reasonably be inferred by a jury. If a jury could not have reasonably come to the conclusion that the accused’s perceptions were reasonable, even accepting that his testimonial evidence was true, then the defence should not have been put to the jury.
[41] In applying the air of reality test to the facts, the Supreme Court concluded that it would be possible for the jury reasonably to conclude that Cinous believed that he was going to be attacked, and that this belief was reasonable in the circumstances. It was also possible for the jury to reasonably infer from the evidence that the accused not only reasonably believed that he was facing an attack but that he faced death or grievous bodily harm. Hence there was an air of reality to the first two constitutive elements of the defence. Further, since the accused’s evidence is assumed to be true for the purpose of this analysis, the Court also concluded that there was an air of reality to the accused’s claim that, at the time he shot the victim, he actually believed that he had no alternative. However, the majority of the Court concluded that there was no evidential foundation upon which a properly instructed jury acting reasonably could infer the reasonableness of the accused’s belief that he had no alternative but to kill the victim. Since there was no evidential foundation in relation to the objective component of the third element of self-defence, the defence as a whole lacked an air of reality.
[42] Each element of the defence in this case must be considered in accordance with the analytical framework set out in Cinous.
(i) Existence of an Assault
[43] The Supreme Court of Canada in Cinous confirmed the principle established in R. v. Pétel, [1994] 1 S.C.R. 3 that the existence of an actual assault is not a prerequisite for a defence under s. 34(2). The question that the jury must ask itself is not whether the accused was unlawfully attacked, but whether he reasonably believed in the circumstances that he was being unlawfully attacked. The question for the trial judge on the threshold evidential test is whether there is evidence upon which a jury acting reasonably could conclude that the accused reasonably believed he was about to be attacked and that this belief was reasonable in the circumstances.
[44] The appellant takes the position that there was an evidential basis for both the subjective and objective components of this element of the defence. In so far as the subjective component is concerned, the appellant relies on his testimony. He testified that since Francis was released from prison he had lived in fear that Francis and his associates would kill him. He also testified that, on the day in question, when he discovered the presence of members of Francis’ family at the Scarborough courthouse and thought it likely that Francis would be with them, he “got paralyzed with fear” as he remembered the night he was shot in his car. With respect to the objective component of the defence, the appellant submits that the evidence of the prior shootings amply supported the objective reasonableness of his apprehension that Francis would attack him.
[45] The appellant does not submit that he was in fear of an imminent attack on May 13, 1997. Indeed, the evidence would not support such contention. He argues rather that the “assault” element in s. 34(2) can be satisfied by evidence of a reasonably based fear of a future physical attack. In support of his submission that there is no need to show any imminent attack, he relies on the following statement by Lamer C.J.C. in R. v. Pétel:
… Lavallee, supra rejected the rule requiring that the apprehended danger be imminent. This alleged rule, which does not appear anywhere in the text of the Criminal Code, is in fact only a mere assumption based on common sense. As Wilson J. noted in Lavallee, this assumption undoubtedly derives from the paradigmatic case of self-defence, which is an altercation between two persons of equal strength. However, evidence may be presented (in particular expert evidence) to rebut this presumption of fact. There is thus no formal requirement that the danger be imminent. Imminence is only one of the factors which the jury should weigh in determining whether the accused had a reasonable apprehension of danger and a reasonable belief that she could not extricate herself otherwise than by killing the attacker.
[46] The appellant also relies on Lavallee, supra, which is referred to in this excerpt. In Lavallee, the accused was charged with the murder of the man she had been living with for several years. She had shot the deceased in the back of the head as he was leaving the room after allegedly assaulting her and threatening her. At the trial, the accused’s statement to the police was introduced. In her statement, the accused admitted shooting the deceased but told the police that the deceased had threatened to kill her when the other visitors to their home left. She stated that she was scared and thinking of all the other times when the deceased had beaten her. A psychiatrist called by the defence testified about the “battered wife syndrome”. The psychiatrist concluded that the accused believed that unless she defended herself in the manner that she did, she would be killed. The accused did not testify at her trial. The defence of self-defence was left to the jury and the accused was acquitted. An appeal to the Manitoba Court of Appeal was allowed and a new trial ordered. On further appeal to the Supreme Court of Canada, the acquittal was restored.
[47] The appellant also relies on the case of McConnell, supra. In that case, the accused McConnell and his co-accused Letendre were inmates in a penitentiary. They were charged with first degree murder in relation to the death of another inmate. Prior to the incident, there had been considerable tension between McConnell and a group of other inmates. The group had made threats that the accused took seriously. He believed that he would be attacked on the evening in question. Fearing for his safety, the accused enlisted the support of the co-accused and armed himself with knuckledusters and a stick. When the victim walked by, the accused attacked him and repeatedly hit him on the head with the knuckledusters while the co-accused stabbed him in the stomach. The victim died from his injuries. The accused and co-accused claimed that they acted in self-defence. McConnell testified but the co-accused did not. A psychiatrist gave expert opinion evidence for the defence. He was qualified as an expert in the areas of the psychiatry of inmates and the culture of inmate population in long-term prisons. He testified as to the inmates’ own system of justice and the necessity that it be allowed to continue if the prison system itself was to survive. He described what courses of action inmates can take to protect themselves and drew an analogy between the prison situation and the condition of a woman who finds herself in the final stages of the “battered wife syndrome.”
[48] In the course of his instructions to the jury on self-defence, the trial judge in McConnell instructed the jury that the accused and co-accused could not claim self-defence under s. 34(2) of the Criminal Code unless they believed that they were in imminent danger of death or serious bodily harm from the victim at the time they attacked him. The jury convicted the accused of manslaughter and the co-accused of second degree murder. On appeal to the Alberta Court of Appeal, the accused and co-accused argued that the trial judge had erred in his instructions to the jury. A majority of the court dismissed the appeal on the basis that the defence of self-defence had no air of reality and should not have been left to the jury. Conrad J.A. disagreed with the majority. She was of the view that there was evidence that threats were communicated to both appellants from which the jury could infer that they were subjectively of the belief, on reasonable grounds, that they were under threat of serious bodily injury or death by persons who had the present ability to carry out that threat. She held further that the co-accused was not prevented from raising this defence even though he had not testified at trial. On further appeal to the Supreme Court of Canada, the appeal was allowed and a new trial was ordered, substantially for the reasons of Conrad J.A.
[49] Based on this jurisprudence, the appellant submits that the trial judge erred by suggesting that the appellant was precluded from relying on self-defence because he did not expect to be attacked “before the day was out”. The appellant submits that the immediacy of the feared attack, or lack thereof, is irrelevant on this first element of the defence.
[50] I disagree. While it is clear that imminence of attack is not a formal requirement to the claim of self-defence, the Supreme Court of Canada in Cinous, in reiterating the principles in Lavallee and Pétel, confirmed that it is still a factor to be taken into consideration “in determining the reasonableness of the accused’s response” (para. 40). In my view, the determination of the reasonableness of the accused’s response involves a consideration of all three elements of the defence. On the first element, the relevance of immediacy is implicit in the question that must be asked, as set out at para. 107 in Cinous: “did the accused reasonably believe, in the circumstances, that [he] was being unlawfully assaulted?…the question is whether there is evidence upon which a jury acting reasonably could conclude that the accused reasonably believed he was about to be attacked” [emphasis added].
[51] Lamer C.J., in Pétel, stated that the alleged rule that the apprehended danger be imminent is not a rule, but “a mere assumption based on common sense.” In my view, the common sense that underlies the s. 34(2) defence must be informed by both the wording of the section and its intended purpose. Section 34(2) speaks of “repelling the assault”. Common sense dictates that the accused’s response for which justification is sought under s. 34(2) must relate to something that is either happening or about to happen. The Supreme Court in Cinous aptly reminds us of the intended purpose of the s. 34(2) defence:
Self-defence under s. 34(2) provides a justification for killing. A person who intentionally takes another human life is entitled to an acquittal if he can make out the elements of the defence. This defence is intended to cover situations of last resort. In order for the defence of self-defence under s. 34(2) to succeed at the end of the day, a jury would have to accept that the accused believed on reasonable grounds that his own safety and survival depended on killing the victim at that moment. [Emphasis added.]
[52] Hence, it is my view that an act of intentional killing will not be reasonable unless there is a temporal connection between the assault, or the reasonably apprehended assault, and the intentional killing in “response” to it. Otherwise, the “response” is not a response at all; the assault or apprehended assault merely provides the accused with a motive for the killing, not justification at law.
[53] In this case, there was no evidence that the appellant believed he was going to be attacked by Francis at the Scarborough courthouse on May 13, 1997. He never said so in his testimony and the proposed expert evidence added nothing to this aspect of the defence. Nor was there any objective basis in the evidence for such a belief. In my view, the appellant’s subjective belief that Francis would physically attack him in the future, and the reasonableness of that belief, without any connection to the events of May 13, 1997, cannot provide the evidential foundation for a s. 34(2) defence for the shooting on that day. The trial judge was correct in distinguishing this case from the situation in either Lavallee or McConnell where there was an evidential basis upon which a jury could infer that the accused reasonably apprehended an attack at the time of the killing.
(ii) Reasonable Apprehension of Death or Grievous Bodily Harm
[54] The analysis on this second element of the defence is set out as follows in Cinous (at para. 112):
The analysis as it relates to this second prong of self-defence under s. 34(2) follows substantially the same path as for the first prong. In order for this element of self-defence to clear the air of reality hurdle, it must be possible for the jury reasonably to infer from the evidence not only that the accused reasonably believed that he was facing an attack, but that he faced death or grievous bodily harm from that attack.
[55] In this case as well, it is my view that the conclusion on the first element goes hand in hand with the determination of the test on the second element. Since there was no air of reality to any perception that the appellant was about to be attacked at the time of the shooting, so too there was no air of reality that the apprehended attack would be grievous or deadly.
(iii) Reasonable Belief in the Absence of Alternatives to Killing
[56] As stated in Cinous (at para. 119), the first question with respect to this element of the defence is whether there is an air of reality to the appellant’s position that, at the time he shot Francis, he actually believed that he had no alternative but to do so in order to preserve himself. The second question is whether there is an air of reality to the contention that this belief was reasonably held.
[57] The appellant submits that there are two different bases on which the jury might have found in his favour on this element. First, it is submitted that even if the jury agreed that there were other options open to the appellant, they could still conclude that the appellant’s failure to avail himself of one of these options was not unreasonable, given his personal circumstances and human frailties. In particular, the appellant relies on the proposed expert evidence that the appellant was suffering from post-traumatic disorder and that this condition would have had some bearing on his ability to think clearly about his options. Second, it is submitted that it was open to the jury to conclude that, in the unusual circumstances of this case, it was reasonable for the appellant to launch a pre-emptive strike against Francis since he had been unable to obtain state protection from Francis. This inability, he submits, is evidenced by the rejection of his application for admission in the witness protection program and Francis’ acquittal on the charge of attempted murder in relation to the Hillcroft shooting the previous year.
[58] Both bases argued by the appellant turn on the jury’s assessment of the reasonableness of the appellant’s belief that shooting Francis was essential to his self-preservation at the time he shot him. The subjective component of this third element of the defence is not really addressed by the appellant’s position. In my view, there is no evidence that the appellant subjectively held such a belief. The appellant said nothing of the sort in his testimony. While counsel for the appellant is correct in noting that the evidentiary basis does not have to be founded on the appellant’s testimony, he points to no other evidence from which an inference could be made that the appellant actually held this subjective belief. While the proposed expert opinion evidence was arguably relevant to the objective component of this element of the defence, the absence of any evidence of an actual belief in the absence of alternatives is fatal to the defence.
[59] In my view, the appellant’s entire position on the issue of self defence is untenable. In a nutshell, his claim to self-defence for the shooting of May 13, 1997 is based on the following: 1) his long-standing apprehension of being attacked by Francis; 2) his apprehension that such an attack would result in grievous bodily harm to him, or in his death; and 3) his belief in the necessity of a preemptive strike as the only alternative for his self-preservation. Counsel for the appellant, in answer to a question from the court, reasonably conceded that those same conditions continued after May 13, 1997, and were still ongoing. Hence, if this court were to conclude that the circumstances, as they existed on May 13, 1997, could provide a basis for the appellant killing Francis, it would follow that the appellant could kill Francis upon his release from jail, and do so with impunity. Arguably, this justification could equally apply to the killing of Francis’ associate Honegan by the appellant; or, for that matter, to the killing of the appellant by Francis.
[60] In my view, the untenability of the appellant’s position demonstrates to what extent the imminence of the attack, or lack thereof, although not a formal requirement, can be an important factor. Indeed, in certain circumstances it can be the determinative factor in the assessment of the reasonableness of the accused’s response. As stated earlier, it is an assumption based on common sense. It is also one that is rooted in policy. Bastarache J. alluded to this policy consideration in R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674.
[61] In Charlebois, the accused had shot the victim in the back of the head while he was sleeping. The two men knew one another but did not live together. The evidence established that while the accused and the victim were sometimes friendly, the victim dominated and regularly took advantage of the more dependent Charlebois. The night of the murder, the victim came over to Charlebois’ apartment. In the presence of a neighbour he had flicked a knife in Charlebois’ face and said (translation): “Yeah, we’re going to have some fun tonight, you and me.” The neighbour left and the victim went to sleep on the couch. Charlebois testified that his apprehension grew when the neighbour left and later his panic became overwhelming. He got up and shot the victim in the back of the head while he was sleeping. Expert evidence was called in support of his defence. The appellant was convicted of second degree murder. The Quebec Court of Appeal, by majority decision, dismissed his appeal. His further appeal as of right to the Supreme Court of Canada was also dismissed.
[62] The appellant relied on Lavallee in support of his claim that he had acted in self-defence. Bastarache J., in writing for the majority, held that Lavallee had no application to Charlebois’ situation. He stated as follows:
It was conceded by the appellant that the relationship between the appellant and the victim here is quite distinguishable from that present in Lavallee. To allow the appeal on this ground would be to legitimize an extension of Lavallee that is not justified on the facts or in policy. While we have relaxed the requirement of imminency of the threat in the self-defence analysis particular to battered women, on the basis of expert evidence outlining the unique conditions they face, there is no justification for extending its scope further on the evidence presented in this case.
[63] I come to the same conclusion in this case. In my view, the trial judge was correct in finding that there was no air of reality to the defence of self-defence. I would not give effect to this ground of appeal.
(b) The Proposed Expert Evidence
[64] As a general rule, opinion evidence is not admissible. The criteria for admitting expert opinion evidence as an exception to the general rule are well-established. The proposed evidence must be relevant to an issue in the case; it must be necessary to assist the trier of fact; it must not be subject to any other exclusionary rule; and it must be tendered by a qualified expert. Even when these criteria are met, the evidence may be rejected if its prejudicial effect on the conduct of the trial outweighs its probative value: see R. v. Mohan, [1994] 2 S.C.R. 9; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275.
[65] I have already found that the proposed expert opinion evidence did not assist the appellant in creating an air of reality to his claim of self-defence. Hence, to the extent that the proposed expert evidence purported to deal with the issue of self-defence, it was irrelevant and inadmissible. The appellant submits, however, that the expert evidence was also relevant to the question of intent.
[66] I have already reproduced the relevant part of Dr. Travis’ proposed testimony on the issue of intent. As stated earlier, the trial judge held that Dr. Travis’ opinion was not based on any psychological expertise but on matters of fact and common sense with respect to which the jury needed no assistance. The trial judge further held that it would be wrong to allow the witness, assuming the mantle of an expert and a scientist, to express to the jury his personal doubts whether the accused would have formulated the intent to kill. Hence, it would appear from the trial judge’s reasons that the evidence was excluded because it did not meet the criterion of necessity and, further, because its potential prejudicial effect outweighed its probative value.
[67] It is clear from Mohan that mere helpfulness is not enough to meet the criterion of necessity. On the other hand, the standard must not be too strict. In Mohan, it was expressed in different ways: 1) the evidence must be necessary in the sense that it provides information which is likely to be outside the experience and knowledge of a judge or jury; 2) it must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature; or 3) the subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it if unassisted by persons with special knowledge. Further, as in the case for relevance, the need for the evidence must be assessed in the light of its potential to distort the fact-finding process. See Mohan at p. 416.
[68] In my view, the trial judge applied the correct test in determining the admissibility of the proposed evidence. Further, his conclusions on its import and potential prejudicial effect are reasonable and supported by the evidence. The trial judge was in the best position to assess the significance of the expert evidence and his decision is entitled to deference in this court. I am not persuaded that there is any basis to interfere.
(c) The Trial Judge’s Interference in the Trial Process
[69] The appellant submits that the trial judge created a reasonable apprehension of bias by prematurely and improperly giving Crown counsel notice of the defences he intended to leave with the jury. It is submitted that he did so at two critical times during the trial, the first after the appellant finished his evidence in chief, and the second during the course of Crown counsel’s cross-examination of Dr. Travis on the voir dire.
[70] The first incident was as follows. After the appellant finished testifying in chief, the Crown requested “leave to consider the cross-examination till Tuesday morning” (the next court day after the long Easter weekend). This prompted the trial judge to have the following exchange in the absence of the jury:
The Court: Why do you want to cross-examine him?
Ms. Richards: Exactly
The Court: I mean, he hasn’t put forward any defence.
Ms. Richards: Exactly. I’m in Your Honour’s hands. Your Honour’s way ahead of me as usual. I wanted a chance to think about it. Maybe we’ll just take the twenty minutes.
The Court: No, we’re going to carry on. You’ve had a lot of time to think about the case. Just do the best you can.
[71] Following a brief recess, the Crown indicated that she had no questions. The defence called one further witness, and the jury was dismissed for the day. The trial judge, again in the absence of the jury, commented on Crown counsel’s decision not to cross-examine the appellant:
The Court: Took a lot of guts. I admire your guts. I think all a cross-examination could do would lead to some kind of a miscommitted [sic] sense of self-defence.
[72] The second incident occurred later in the trial during Dr. Travis’s voir dire testimony. At one point, the trial judge interrupted the Crown’s cross-examination and stated:
The Court: All [Dr. Travis] is saying is that, in his opinion, that [the shooting] was poorly planned and executed, which upon examination is not a psychological opinion. It is a matter of common sense that in that area the jury would need no assistance, so you don’t have to go into that.
Ms. Richards: Yes. Thank you, Your Honour.
The Court: Now, correct me if I am wrong. I don’t recall Dr. Travis talking about any concept of self-defence in-chief. Am I wrong about that?
Ms. Richards: That’s correct.
The Court: Okay.
Ms. Richards: I have no further questions.
[73] The appellant submits that the trial judge’s interference was improper for two reasons: first, it suggested that he had already made up his mind to reject the defence of self-defence before hearing submissions; and second, it gave the appearance that he was assisting Crown counsel in the conduct of her case by giving her advance notice of how he eventually would rule on this issue.
[74] The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369. It was reiterated more recently in R. v. S. (R.D.), [1997] 3 S.C.R. 484 at para. 31. The Supreme Court confirmed that the grounds for the apprehension must be substantial and that “the apprehension of bias must be a reasonable one, held by reasonable and right‑minded persons, applying themselves to the question and obtaining thereon the required information.” The question to be asked is:
what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
[75] The trial judge’s interventions must be considered in context and in the light of the entire trial. The trial judge’s “advice” to Crown counsel with respect to her decision whether or not to cross-examine the appellant was made in the context of Crown counsel’s request for an adjournment to consider the matter. The trial judge’s suggestion that the appellant had not put forward any defence in his testimony was a fair comment on his evidence and, more importantly, Crown counsel was not at all bound to agree with this suggestion. Indeed, she took the recess to consider her position. Further, it is not at all clear that an informed bystander would conclude that the Crown would benefit from the fact that the appellant’s testimony was not subjected to cross-examination. It is also noteworthy that the trial judge gave similar advice to defence counsel not to cross-examine Francis (which advice was ignored) because in his view Francis was not credible. The trial judge eventually told the jury in his charge “I would not believe Francis on a stack of 500 bibles.” The trial judge’s comment to Crown counsel during the course of the voir dire was also a fair comment on Dr. Travis’ evidence. The interventions were not made in front of the jury and would not have influenced their consideration of the case.
[76] When the trial judge’s interventions are considered in context, it becomes apparent that they were made with a view of ensuring that the trial proceeded in an efficient manner. While it may have been preferable if the trial judge had not made some of the comments in question, it is my view that the interventions in question could not give rise to a reasonable apprehension of bias. I would not give effect to this ground of appeal.
d) Crown Counsel’s Closing Address
[77] The appellant alleges several improprieties on the part of Crown counsel in her jury address. His main contention is that it was improper for Crown counsel to submit to the jury in her closing address that the appellant’s attack had been planned and deliberate. The appellant submits that this suggestion was improper because it was a novel theory based largely on an interpretation of the appellant’s testimony that had not been put to him at trial. For example, in her address to the jury, Crown counsel questioned whether the appellant’s testimony that he had gone to the convenience store to use to the telephone in response to a page and suggested, rather, that he had gone there to lie in wait for Francis; she suggested that an adverse inference could be drawn that he wanted to avoid detection from the fact that he was driving a rental car rather than his own vehicle that was known to Francis; likewise, she suggested that an inference could be drawn from the fact that the appellant parked some distance from the courthouse. The appellant submits that Crown counsel, having chosen not to cross-examine the appellant, was precluded from advancing suggestions of this nature. The appellant argues further that it was incumbent upon the trial judge to instruct the jury to disregard those remarks.
[78] I am not persuaded that Crown counsel’s closing address was improper as contended. It was the Crown’s theory from the start that this was a revenge shooting. It is obvious that this theory also included some notion of pre-planning and that this aspect of the Crown’s theory was known to the defence. Indeed, defence counsel, prior to the delivery of Crown counsel’s address, attempted to rebut this theory in his closing address and told the jury that the events of May 13 were “anything but a planned revenge shooting.” Further, Crown counsel was not obliged to cross-examine the appellant to argue that his testimony was not credible. The suggestions made to the jury consisted of reasonable inferences that could be drawn from the evidence. I would not give effect to this final ground of appeal.
- The Sentence Appeal
[79] The appellant was sentenced to 8 years imprisonment in addition to 23 months pre-trial custody. He was 28 years old at the time of sentencing. He had a previous criminal record that included a conviction for trafficking in a narcotic for which he received a suspended sentence and a conviction for aggravated assault for which he was sentenced to two years less a day imprisonment. Very little personal information about the appellant was provided at the sentence hearing. Crown counsel recommended a sentence in the 12 to 15 year range while the defence suggested 6 to 7 years. If the appellant is given a “two for one” credit for the time spent in custody, the sentence imposed is two months short of 12 years.
[80] The appellant submits in his factum that the trial judge misapprehended the evidence by characterizing the appellant as an equal participant with Francis in a “gang war” and stating that they were “birds of a feather”. He argues that while there was considerable evidence that he had been the victim of several previous attacks, there was no admissible or credible evidence that he had ever been the aggressor. Counsel for the appellant argued further that the appellant had made bona fide efforts to seek protection for himself through legal means prior to this shooting and that this should be taken into account in mitigation of the sentence. In essence, it was argued that the sentence was excessive.
[81] The appeal against sentence is without merit. The trial judge did not misapprehend the evidence. There was overwhelming evidence that the appellant, the victim and others were involved in a gang-related war. This evidence was admitted through the investigating officers with the express consent of counsel for the defence who stated that, “if properly and strictly proved [it would] take twenty witnesses or so to prove … a whole other set of incidents.” It cannot now be argued that this evidence was inadmissible or improperly used by the trial judge.
[82] The trial judge found that the decision to shoot Francis was a deliberate one:
Now, of course, he had a lot of different options. He had the option of just walking over to his car and driving away, or to be super safe he had the option of going to the open back door, circle around and get in his car and drive away. But he made a calculated decision that he would go in the courthouse, ostensibly to pay his fine. As he walked along towards the courthouse he saw the victim’s mother and some of his children. Again, this alerted him to the fact that the victim must be in the near vicinity. He returned to the smoke shop, renewed his deliberations, and I find as a fact it was at the time that he made up his mind to go forward and kill Francis. It is interesting to note that as he approached the scene of the shooting there was a disinterested party walking in the same direction and he walked too closely behind this man that this man became a little concerned and said something to him about it. It was obvious that he was using this man as a human shield so that he could get as close as possible to Francis without Francis seeing him.
[83] The trial judge also commented that it was a medical miracle that Francis was not killed. Finally, he noted the grave danger to the public occasioned by an attempted killing carried out in a public place.
[84] The findings of the trial judge are amply supported by the evidence. In my view, the sentence was entirely fit.
V. Disposition
[85] For these reasons, I would dismiss the appeal against conviction. I would grant leave to appeal the sentence but dismiss it.
RELEASED: June 5, 2002 “Louise Charron J.A.”
“I agree K.M. Weiler J.A.”
“I agree R.J. Sharpe J.A.”