CITATION: R. v. Gill, 2009 ONCA 124
DATE: 20090209
DOCKET: C45535
COURT OF APPEAL FOR ONTARIO
Simmons, Cronk and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Raman Gill
Appellant
Marie Henein and Margaret Bojanowska for the Appellant
James K. Stewart for the Respondent
Heard: November 10, 2008
On appeal from the conviction entered by Justice S. Casey Hill of the Superior Court of Justice, sitting with a jury, on March 8, 2006.
By the Court:
[1] Following a trial before Hill J. sitting with a jury, the appellant was convicted of the second degree murder of Anastasios (“Tom”) Garavellos. The appellant raises three issues on appeal:
i) the trial judge erred by failing to leave the defence of provocation with the jury;
ii) the trial judge erred by failing to provide the jury with proper instructions concerning manslaughter, in particular, by failing to identify the evidence relevant to the issue of the intent for manslaughter; and
iii) having regard to the overwhelming evidence of self-defence, the verdict of second degree murder was unreasonable.
[2] For the reasons that follow, we conclude that the appeal must be allowed on the first ground. It is therefore unnecessary that we deal with the appellant’s remaining grounds of appeal.
I. Did the trial judge err by failing to leave the defence of provocation with the jury?
i) The Defence Version of the Events
[3] In the summer of 2003, the appellant was a 24 year-old university student. He was living with his family and had no criminal record. On the evening of August 14, 2003, the first night of an electrical blackout that affected much of Ontario, the appellant and two friends, Mr. Hasan and Mr. Chaudhry, were looking at the sky through a telescope across the street from Mr. Chaudhry’s home. None of the group was consuming alcohol.
[4] Around midnight, Mr. Garavellos passed the group of stargazers in a car driven by his friend, Mr. Medeiros. Mr. Garavellos and Mr. Medeiros had been smoking marijuana and drinking alcohol during the evening. As they drove by, Mr. Garavellos called the three friends “fucking geeks”. Angered by this insult, the appellant ran after the car and hit it with his hand.
[5] Mr. Medeiros and Mr. Garavellos got out of their car and were angry and loud, demanding to know who had hit the car. Mr. Garavellos had a glass beer bottle in his hand. A confrontation ensued. Mr. Garavellos and Mr. Medeiros remained hostile, moving the appellant and his friends back along the street. Mr. Garavellos, in particular, was loud and aggressive. The appellant ran back to his knapsack and retrieved a knife he had purchased for protection following an attempted robbery. Mr. Hasan also armed himself with a tool from the jack set in his car. Mr. Medeiros returned to his car, apparently to arm himself, saying, “Wait ‘til you see what I have in my trunk.”
[6] According to Mr. Hasan and Mr. Chaudhry, Mr. Garavellos then pushed at Mr. Hasan’s head with his free hand, but Mr. Hasan evaded him. Mr. Chaudhry, who had martial arts training, stepped in and punched Mr. Garavellos in the side of the face, in an effort to stun him and get him to calm down. Mr. Garavellos stumbled sideways towards the appellant and attempted to shake himself off. He adjusted his grip on the beer bottle and turned towards the appellant. He began moving toward the appellant, waving or raising the beer bottle and saying, “if you’re gonna do it, do it.” Neither Mr. Hasan nor Mr. Chaudhry saw what happened next as their attention was diverted to Mr. Medeiros.
[7] The appellant testified that, upon seeing the two men get out of the car, he became frightened. Both were significantly larger than he (the appellant was approximately 5’ 6”, 130-135 lbs. at the time; Mr. Medeiros was about 6’, 200 lbs; and Mr. Garavellos was 5’ 7”, 180 lbs.). According to the appellant, Mr. Garavellos advanced towards him, holding a glass beer bottle, and saying, “What the fuck?” and, “Who do you think you’re fucking with?” In cross-examination, the appellant claimed Mr. Garavellos also said words to the effect, “I’m going to fuck you up.”
[8] The appellant did not see the exchange between Mr. Garavellos, Mr. Hasan and Mr. Chaudhry. He saw Mr. Garavellos approaching, while waving his beer bottle and saying words to the effect, “if you’re gonna do it, do it”. The appellant said that he perceived Mr. Garavellos’ words and actions as a threat and that he was extremely frightened.
[9] According to the appellant, Mr. Garavellos continued to advance, raised the beer bottle to the side of his head, and then swung at the appellant’s head in an overhand baseball-type of throwing motion. The appellant managed to move his head out of the way. The appellant testified that when Mr. Garavellos tried to hit him over the head, he just reacted and, in a split second, stabbed Mr. Garavellos.
[10] During cross-examination, the appellant denied Crown counsel’s suggestions that he was angry when he stabbed Mr. Garavellos. For example, he testified as follows:
Q. But he’d yelled at you, right?
A. That’s correct.
Q. Sworn at you, right?
A. That’s correct.
Q. And in your mind he was obnoxious, right?
A. I’m -- I suppose so.
Q. He disrespected you, right?
A. That’s correct.
Q. And all of that made you angry?
A. It -- I was angry when the initial comment was made, but once he came with the bottle, then I was frightened and fearful, that’s why I left the scene.
Q. And all of this made you angry enough to point a knife at him and to still go after him even when it was a three on one situation, right?
A. I wouldn’t put it in those terms, sir.
Q. And at that point, the point just before you stab him, you’re still angry at him because even though you’re pointing a knife at him, he still doesn’t respect you, right?
A. It’s not like that. I was -- I was scared because he was swinging the bottle and then I just was backing up and then…
[11] However, the appellant also maintained his position during cross-examination that everything happened quickly, that Mr. Garavellos tried to hit him, and that he just reacted. For example, he said:
Q. So you didn’t need to follow-up your -- whatever move you made to avoid that beer bottle. You didn’t need to follow that up with a stab to Tom Garavellos’ abdomen, did you?
A. Everything happened so quickly, just when -- when he swung it at my head I just defended myself. I just reacted because he was already swinging it across his chest and I kept backing off, just when he went to strike me on my head, that’s when I just reacted. It happened very, very quickly.
[12] The appellant’s evidence that events happened quickly was confirmed by two 911 calls made 42 seconds apart, the first made by a witness who heard the words, “Wait 'til you see what I have in my trunk”, and the second made by a witness who saw Mr. Garavellos fall to the ground.
ii) The Trial Judge’s Initial Ruling
[13] In a ruling given after the pre-charge conference and before the closing addresses of counsel, the trial judge declined to leave the defence of provocation with the jury, holding that there was no air of reality to that defence. In making this decision, the trial judge appeared to rely on two factors: first, the appellant’s evidence disavowing anger as the trigger for his actions, and second, a finding that there was no evidence of the appellant acting in the heat of passion or as a result of a loss of self control. The trial judge said:
A close reading of Raman Gill’s evidence establishes that he was angry at the comments directed to him and his friends and when he struck the car. He expressly disavowed anger as the trigger for his subsequent actions including the stabbing of Mr. Garavellos. He remained fearful, on his testimony, that Mr. Garavellos would harm him. He took the words, “If you’re gonna do it, do it” as a threat not a taunt. The defendant had already prepared himself by arming himself with a knife.
On the record here, there is simply no evidence of the defendant acting in the heat of passion or a loss of self-control from a wrongful act or insult. On the view of the evidence most favourable to the defendant, already described, the defence is self-defence for self-preservation.
iii) The Trial Judge’s Second Ruling
[14] Following the Crown’s closing address, in which Crown counsel at trial relied forcefully on anger as a motive for murder, defence counsel at trial asked the trial judge to re-visit his earlier ruling and to reconsider putting provocation to the jury as a defence. The trial judge declined, saying:
The evidence in my view does not support a sudden loss of control. The kind of anger put by Crown counsel, even though this is all relatively a short period of time, is one really of calculated anger including during the period of the obtaining of the knife and it’s my view that there still remains no air of reality to the provocation defence.
iv) Analysis
[15] We accept the appellant’s submission that the trial judge erred in holding that there was no air of reality to the defence of provocation on the facts of this case.
[16] In R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, the Supreme Court of Canada emphasized that in determining whether there is an air of reality to a defence, a trial judge is engaged in a threshold determination, aimed at assessing whether there is evidence based on which a properly instructed jury acting reasonably could acquit: Cinous at paras. 54-60; see also R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at paras. 70-74. Save with respect to the limited weighing necessary to assess the inferences available from circumstantial evidence, the trial judge is not permitted to weigh the evidence, to make determinations about the credibility of witnesses, or to make findings of fact.
[17] In applying the air of reality test, the trial judge must consider the totality of the evidence and is required to assume that the evidence relied upon by the accused is true: Cinous at para. 53. However, particularly where a jury is invited to reject parts of a person’s evidence that could be relevant to a proposed defence, it will be necessary for the trial judge to assess whether sufficient evidence will remain based on which a properly instructed jury acting reasonably could acquit if some or all the evidence relevant to a particular defence is rejected: R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836.
[18] As we have said, in this case, the trial judge’s decision that there was no air of reality to the defence of provocation appears to be premised on two factors: first, the appellant’s evidence disavowing anger as the trigger for his actions, and second, a finding that there was no evidence of the appellant acting in the heat of passion or as a result of a loss of self control.
[19] We agree that there will be some cases in which the appellant’s disavowal of one of the elements of a defence will preclude the availability of the defence based on the air of reality threshold.[^1] However, this is not one of those cases. In challenging the appellant’s evidence that he was afraid at the time he stabbed Mr. Garavellos, the Crown suggested, both in cross-examination and in his closing address to the jury, that the appellant’s true emotion was anger. If the jury rejected the appellant’s evidence that he was afraid, there was evidence capable of supporting an inference that he was angry. Similarly, there was evidence capable of supporting an inference that the appellant acted in the heat of passion or as a result of a loss of self-control. It was also open to the jury to conclude that the appellant was both frightened and angry.
[20] The appellant testified that his actions in initially following and then hitting the car in which Mr. Garavellos and Mr. Medeiros were riding were motivated by anger at a perceived insult. Particularly in this context, it would have been open to the jury to infer that the appellant remained angry at Mr. Garavellos throughout subsequent events, and that his anger escalated because of Mr. Garavellos’s subsequent behaviour. It would have been open to the jury to interpret the appellant’s behaviour in retrieving his knife and returning to the scene of the confrontation as motivated by anger. In addition, it would have been open to the jury to conclude that the appellant perceived Mr. Garavellos’s statement “if you’re gonna do it, do it” as a taunt amounting to an insult within the meaning of s. 232 of the Criminal Code.[^2]
[21] Further, if the jury did not reject the appellant’s testimony that Mr. Garavellos swung the beer bottle at his head and his repeated testimony that he stabbed Mr. Garavellos as a reaction to Mr. Garavellos’s conduct, it would have been open to the jury to find that the appellant’s conduct was prompted by sudden rage. The fact that the appellant previously retreated from the confrontation, retrieved a knife, and then returned to the confrontation does not undermine the availability of this inference.
[22] Accordingly, despite the appellant’s disavowal of anger as his governing emotion, we conclude that it would have been open to the jury to find provocation capable of reducing murder to manslaughter if the jury rejected this aspect of the appellant’s evidence but did not reject the remainder.
II. Disposition
[23] The appeal is allowed, the conviction is set aside, and a new trial is ordered.
RELEASED: February 9, 2009 “JS”
“Janet Simmons J.A.”
“E.A. Cronk J.A.”
“David Watt J.A.”
[^1]: For example, see R. v. Olbey, 1979 CanLII 61 (SCC), [1980] 1 S.C.R. 1008; and R. v . Faid, 1983 CanLII 136 (SCC), [1983] 1 S.C.R. 265. In Olbey, the accused testified that he thought the deceased was reaching for a gun and claimed that he shot the deceased to defend himself. Although another witness claimed she overheard the deceased utter a racial slur at the accused, she also said the accused shot the deceased about four or five minutes after that comment was made. In Faid, the accused testified that he used measured force to defend himself. There was no evidence at the trial that the accused acted in the heat of passion or as the result of a sudden loss of self-control.
[^2]: In R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37, the Supreme Court of Canada noted that Taylor v. The King, 1947 CanLII 6 (SCC), [1947] S.C.R. 462, adopted The Oxford English Dictionary definition of "insult" and found it to mean:
. . . an act, or the action, of attacking or assailing; an open and sudden attack or assault without formal preparations; injuriously contemptuous speech or behaviour; scornful utterance or action intended to wound self-respect; an affront; indignity.