CITATION: R. v. Pilon, 2009 ONCA 248
Date: 20090320
Docket: C45791
COURT OF APPEAL FOR ONTARIO
Doherty, Simmons and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Robert Pilon
Appellant
Marie Henein and Jordan Glick, for the appellant
Howard Leibovich, for the respondent
Heard: February 3 and 4, 2009
On appeal from the conviction entered on December 9, 2005, by a jury in Ottawa presided over by Justice Catherine D. Aitken of the Superior Court of Justice.
Doherty J.A.:
I. OVERVIEW
[1] The appellant was convicted of first degree murder. He raises three grounds of appeal:
Did the trial judge err in excluding evidence relevant to the deceased’s propensity for violence and his habit of carrying a gun?
Did the trial judge err in failing to instruct the jury on the defence of self-defence as defined in s. 34(2) of the Criminal Code?
Did the trial judge err in failing to instruct the jury on the defence of provocation?
[2] I would dismiss the appeal. On the first ground, the jury heard a great deal of evidence about the deceased’s criminal lifestyle, his propensity for violence and the many threats he had made against the appellant. The jury also heard evidence that the deceased loved guns, habitually carried guns and owned literally hundreds of guns. I think it was open to the trial judge, in the context of this evidence and the positions taken by the parties, to conclude that the excluded evidence would not materially assist the jury in deciding whether the deceased was armed when shot by the appellant, and that it could prejudice the jury in its effort to arrive at a true verdict based exclusively on the evidence.
[3] With respect to the second and third grounds of appeal, the trial judge applied the air of reality analysis in deciding that neither self-defence, as defined in s. 34(2) of the Criminal Code, nor provocation should be left with the jury. In doing so, the trial judge identified the constituent elements of both defences, considered the totality of the evidence and gave that evidence the interpretation most favourable to the appellant that it could reasonably bear. I agree with her conclusion that neither defence should go to the jury.
[4] The grounds of appeal do not involve any disagreement as to the applicable legal principles. The dispute arises out of the application of those settled legal principles to the combination of circumstances presented in this case. Given the nature of the arguments advanced on appeal, I will refer to the evidence in some detail. In doing so, I will not rehearse all of the variations and contradictions in the evidence, but will attempt to present a summary that permits a proper understanding of the issues raised on appeal and my analysis of those issues.
II. FACTS
[5] The appellant and the deceased, Marshall McKinnon, had been friends and business partners at one time. Both were part of the biker gang criminal sub-culture in the Ottawa area. Neither was a stranger to the criminal activities, threats and intimidation associated with that lifestyle.
[6] The friendship between the appellant and McKinnon soured in the early 1990s. The reasons do not matter. Over the next ten to fifteen years, each confronted the other from time to time. Threats and altercations were not uncommon. There was evidence that McKinnon threatened the appellant with a gun on more than one occasion, and twice tried to hire someone to kill the appellant. The appellant testified that in about 1999, he started carrying a loaded shotgun in his vehicle both because of McKinnon’s ongoing threats and an attempt on his life in 1999 that had nothing to do with McKinnon.
[7] The relationship between the appellant and McKinnon became particularly acrimonious late in 2003. The appellant believed that McKinnon was spreading a lie among their mutual associates that the appellant was a “rat” for the police. This made the appellant angry and afraid. In his world, gaining a reputation as a police informant could be fatal.
[8] On February 5, 2004, the day of the homicide, the appellant attended a wake at Cagney’s restaurant for a friend’s children who had died in a fire. Cagney’s is located in a small strip mall at 2953 Carling Avenue in Ottawa. Cagney’s occupies the most westerly part of the mall. A Harvey’s restaurant occupies the easterly part of the mall. There is a small store between Harvey’s and Cagney’s. Scrivens Street runs north and south immediately to the west of the mall. Carling Avenue runs east and west to the south of the mall.
[9] McKinnon arrived at the wake some time after the appellant. Shortly after McKinnon’s arrival, the two men argued. Each insulted the other, the appellant threw food at McKinnon and some pushing and shoving followed. Roger Nairne, a friend of both the appellant and McKinnon, with some help from others, separated the two men. McKinnon was ushered out of Cagney’s. Both the appellant and McKinnon were angry after the altercation.
[10] McKinnon went to Harvey’s. Over the next two hours, he sat and drank coffee. Nairne visited McKinnon in Harvey’s at least twice. Nairne testified that McKinnon was armed with a handgun while sitting in Harvey’s and seemed determined to gain revenge for the humiliation inflicted on him by the appellant in Cagney’s.
[11] The appellant remained in Cagney’s at the wake. According to his testimony, he was not aware that McKinnon was sitting in the adjacent Harvey’s or that Nairne had visited McKinnon. There was, however, evidence that Nairne spoke with the appellant at least three times while, to Nairne’s knowledge, McKinnon was sitting in Harvey’s. It was part of the Crown’s theory that Nairne was keeping the appellant advised of McKinnon’s whereabouts.
[12] The appellant left Cagney’s about two hours after his altercation with McKinnon. He walked toward his truck parked in the lot behind Harvey’s. The appellant kept a careful lookout as he was very concerned that McKinnon could be hiding somewhere nearby waiting to attack him.
[13] The appellant got into his truck. He had a loaded shotgun under the front seat. He testified that he could not exit the parking lot along the laneway because a large truck had blocked his path. The appellant backed his truck up until it was beside the ramp walkway leading down to the parking area from Harvey’s.
[14] The appellant saw McKinnon coming down the ramp shouting that he wanted to talk to the appellant. The appellant got out of his truck and then realized that McKinnon was brandishing a gun. As McKinnon moved down the ramp toward the appellant, the appellant backed up, slipped and fell to the ground. Despite losing his footing, the appellant was able to reach into his truck and pull out his loaded shotgun from underneath the front seat. The appellant fired two blasts in the direction of McKinnon. McKinnon was not hit. The appellant testified that he intentionally fired over McKinnon’s head to frighten him. Forensic evidence confirmed that at least one shot struck the building above McKinnon’s head. McKinnon disappeared momentarily but then reappeared on the ramp. The appellant fired a third shot again intending to warn McKinnon. After the third shot, McKinnon moved back into Harvey’s. If, as the appellant contended, McKinnon had a weapon, he did not fire it during this encounter.
[15] After firing three shots and seeing McKinnon head back to Harvey’s, the appellant returned to his truck and drove westbound along the lane running behind the strip mall. When the appellant reached Scrivens Street, he turned southbound and headed toward Carling Avenue. This route took the appellant immediately west of the part of the strip mall where Cagney’s was located. The appellant could have turned right on Scrivens and driven northbound away from the strip mall. For some reason, he chose to drive back toward the building into which McKinnon had fled only seconds earlier.
[16] The appellant testified that he drove southbound on Scrivens a short distance toward Carling Avenue. He was stopped at the red light on the corner of Scrivens and Carling waiting for that light to change when he saw McKinnon standing in front of the extreme west end of Cagney’s. McKinnon was yelling toward the appellant and pointing a gun at him. The appellant testified that he thought that McKinnon could be firing the weapon at him. McKinnon was standing about 50 feet away from the appellant’s vehicle.
[17] On the appellant’s evidence, he chose to jump from his truck, leaving it idling on the street, and run toward McKinnon carrying his loaded shotgun. McKinnon turned around and ran back into Cagney’s. The appellant continued the chase still carrying his loaded shotgun. As McKinnon ran into Cagney’s, he yelled, “Somebody’s gonna shoot me”. The appellant, in very close pursuit, ran into Cagney’s and yelled for everyone to get down. There was a spent shell in the chamber of the shotgun and it could not be fired until the appellant cleared the chamber.
[18] The appellant testified that as he chased McKinnon through Cagney’s, McKinnon grabbed a bystander and seemed to be using that person as a shield. McKinnon appeared to be trying to aim his gun at the appellant while holding the bystander. The appellant ejected the spent shell from the chamber of his shotgun. The bystander dropped to the floor and the appellant opened fire on McKinnon.
[19] The appellant insisted that he was not trying to kill McKinnon but only wanted to disable him because he feared McKinnon would kill him. The appellant shot McKinnon at least twice. The post-mortem revealed a significant gunshot wound to McKinnon’s lower right back, six smaller gunshot wounds to the right side and back parts of McKinnon’s right leg, and a gunshot wound on the inside of the left leg closer to the front than the back of the leg.
[20] The appellant fled the scene immediately after shooting McKinnon. He disposed of his shotgun and later abandoned his truck. The appellant turned himself into the police the next day.
[21] Three witnesses testified that McKinnon had a gun immediately after he was shot by the appellant. Nairne, who testified he had seen McKinnon with a gun earlier in Harvey’s, also testified that he approached McKinnon who was lying on the floor after he was shot. McKinnon gave Nairne his gun and asked him for help. Nairne testified that he took the gun and left the scene before the police arrived. A few months later, he gave the gun to a biker associate, Scotty Killeen. Killeen cleaned and scoured the gun before turning it over to the authorities. That gun was produced at trial, but could not be forensically linked to McKinnon or the shooting.
[22] Nairne, as indicated above, a friend of both the appellant and McKinnon, was a self-confessed lifetime violent criminal, although he professed to be retired at the time of trial. Nairne had worked as McKinnon’s enforcer collecting drug related debts for many years.
[23] Killeen, also a friend of the appellant and an enforcer in the drug trade for biker gangs, testified that he saw McKinnon hand Nairne the gun. According to Killeen, the gun was in McKinnon’s pocket. Nairne had testified that it was in McKinnon’s belt.
[24] Joanne Karam, the third witness who testified she saw McKinnon with a gun after the shooting, was also a good friend of the appellant. She indicated that she saw McKinnon trying to give his gun to someone after the shooting, presumably so that the police would not catch him with a gun. Karam did not mention seeing a gun in McKinnon’s possession in either of the two statements she gave to the police. In those same statements, she claimed not to recognize the person who shot McKinnon, although she was standing very close to that person when the shooting occurred. The shooter was, of course, Karam’s good friend, the appellant.
[25] Although Nairne, Killeen and Karam all testified to seeing McKinnon with a gun immediately after the shooting, none of them saw McKinnon use the gun in any way during the encounter with the appellant.
[26] At trial, the Crown argued that the ongoing animosity between the appellant and McKinnon, fuelled by the false rumours McKinnon spread in late 2003, finally boiled over after the initial confrontation in Cagney’s. The Crown submitted that the appellant had decided to kill McKinnon before the appellant left Cagney’s. In furtherance of that plan, he left Cagney’s and waited at the bottom of the exit from Harvey’s in his vehicle. When McKinnon came out of Harvey’s, the appellant opened fire. He missed. The appellant then circled around the building, saw McKinnon and pursued him. The appellant caught up to him in Cagney’s and shot him in the back.
[27] The appellant testified that he had acted in self-defence throughout. Counsel for the appellant could not advance that position before the jury as the trial judge held there was no air of reality to the defence of self-defence. Before the jury, counsel argued that the appellant did not intend to kill McKinnon, much less plan to kill him. Counsel argued that the appellant had left the wake, intending to drive away, when he had a sudden unexpected encounter with McKinnon, who was armed. As counsel put it:
This was a classic case of things arising suddenly. And just unfortunately getting way out of control.
[28] The respective positions of the parties at trial confirm that McKinnon’s possession of a gun during the confrontation was an important factual issue at trial. If McKinnon was not armed outside of Harvey’s or during the fatal encounter that ended in Cagney’s, the appellant’s conviction on a charge of at least second degree murder was almost inevitable. I also agree with Ms. Henein’s contention that the Crown’s position that the murder was planned and deliberate was stronger if the jury were to find that McKinnon was not armed. If he was not armed, the defence could not successfully argue that the appellant decided to kill McKinnon only after his unexpected encounter with the armed McKinnon either outside of Harvey’s or in front of Cagney’s.
[29] The appellant relied on his own evidence as well as the evidence of Killeen, Nairne and Karam to support his contention that McKinnon was armed. There were significant problems with the credibility of all four witnesses. Furthermore, only the appellant testified that he saw McKinnon use the weapon in any way during the confrontation at Harvey’s or at Cagney’s.
[30] The Crown claimed that McKinnon was not armed. To support this contention, the Crown relied primarily on the absence of any evidence that McKinnon used a firearm at any time during either the confrontation outside of Harvey’s or the fatal confrontation moments later. The Crown argued that McKinnon was no stranger to the use of weapons, and was known to be a violent person. The Crown contended that McKinnon had every opportunity to use a gun against the appellant if he had one and that his failure to use a weapon demonstrated that he did not have a weapon. Alternatively, the Crown argued that even if McKinnon had possession of a gun, there was no evidence, apart from the appellant’s incredible version of events, that McKinnon ever used the weapon or threatened the appellant with it.
[31] An appreciation of the dispute over whether McKinnon had a gun and the significance of that factual issue leads into the first ground of appeal. The excluded evidence was relevant to that very question.
III. ANALYSIS
1. Did the Trial Judge Properly Exclude Evidence of McKinnon’s Propensity for Violence and His Habit of Carrying a Gun?
[32] The operative legal principles are clear. Relevant evidence is admissible unless subject to some exclusionary rule: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 713-15, per LaForest J. in dissent on another issue. One such exclusionary rule provides for the exclusion of relevant evidence proffered by the defence if the potential probative value of that evidence is substantially outweighed by its potential prejudicial effect: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 107.
[33] Evidence is relevant if, as a matter of common sense and human experience, it makes the existence of a fact in issue more or less likely: R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47. Relevance is assessed by reference to the material issues in a particular case and in the context of the entirety of the evidence and the positions of the parties: David Watt, Watt’s Manual of Criminal Evidence (Toronto: Carswell, 2008), at pp. 25-26. Evidence of a person’s disposition and his or her habit may provide circumstantial evidence that a person acted in a certain way on a given occasion: R. v. Scopelliti (1981), 1981 CanLII 1787 (ON CA), 34 O.R. (2d) 524 (C.A.), at pp. 536-37; R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 30 O.R. (3d) 161 (C.A.), at p. 176.
[34] Counsel for the Crown did not suggest at trial or on appeal that the evidence of McKinnon’s violent disposition and his habit of carrying a gun was irrelevant to whether he was in possession of a gun at the relevant time. Nor did the trial judge find that the evidence was irrelevant. In fact, she admitted a considerable body of evidence going to the appellant’s violent disposition and his habit of carrying a gun. She also told the jury that the evidence of disposition and habit was relevant to their determination of whether McKinnon had a gun during the confrontation.
[35] The trial judge did, however, exclude some of the evidence offered for the purpose of establishing McKinnon’s violent disposition and his habit of carrying a gun. She excluded that evidence on the basis that its potential probative value was clearly outweighed by its potential prejudicial effect. That assessment is challenged by counsel on this appeal.
[36] Counsel argues that the excluded evidence, which came from three police officers, was potentially powerful evidence going both to McKinnon’s propensity for violence and his habit of carrying a gun. Most significantly, counsel contends this evidence did not suffer from the significant credibility problems associated with the evidence of McKinnon’s propensity for violence and habit of carrying a gun that the trial judge did admit. Counsel submits that the evidence of three reputable police officers was far more probative than the evidence of the appellant, two drug debt enforcers (Killeen and Nairne) and a good friend of the appellant (Karam).
[37] The trial judge considered the admissibility of evidence of McKinnon’s propensity for violence and his habit of carrying a gun on more than one occasion during the trial. The first ruling occurred at the end of the Crown’s case after a voir dire in which counsel for the appellant had led evidence from three police officers as well as Nairne. The three police officers had been involved in an undercover operation that targeted McKinnon, along with others, between 1994 and 1996. They gave evidence about McKinnon’s violent disposition and habit of carrying a gun based on their involvement in that investigation. Nairne’s evidence about McKinnon’s propensity and his habit of carrying a gun was based on his long-time criminal association with McKinnon.
[38] In her initial ruling, the trial judge excluded all of the evidence. While she accepted that evidence of McKinnon’s propensity for violence and habit of carrying a gun had some probative value on the question of whether the murder was planned and deliberate, the trial judge held that the prejudicial effect significantly outweighed that potential probative value.[^1] The trial judge referred to several aspects of the evidence which, in her view, diminished its probative value and increased its prejudicial potential.
[39] After the initial ruling, the defence called evidence. The appellant testified as did Nairne. After hearing that evidence, the trial judge decided to allow Nairne to give evidence concerning McKinnon’s habit of carrying a gun. Nairne was recalled and testified that he had known McKinnon for about ten years and had worked for him as a drug debt enforcer for six or seven years. He was asked how often McKinnon carried a gun. Nairne answered:
Pretty well every day. I would say every day. The only time he didn’t carry one was if we couldn’t carry them because we’d just used them.
[40] Nairne further testified that McKinnon would sometimes carry automatic weapons “depending on the situation” as well as handguns. In cross-examination, Nairne agreed with the Crown’s suggestion that McKinnon “carried a firearm for every occasion”. The Crown then asked:
Q. … [N]o matter what it is that you or he or together would be doing in a day, whether it’s sitting in a restaurant or having lunch or having breakfast, Marshall [McKinnon] would have his firearm on him. Agreed?
A. Yeah. Depending on the situation, depending on – but the most part, yes.
[41] Nairne also agreed with the Crown that McKinnon loved guns, especially unusual or rare ones. The Crown then suggested that McKinnon “wore a firearm the way some women wear jewellery”. Nairne responded:
I would say yes, he loved to carry things, whatever. But he didn’t love it the way that was. He carried them because he had to, because of his profession.
[42] Nairne reiterated that McKinnon “needed” to carry firearms and that he carried them “no matter what it is that he was up to”.
[43] Killeen, who testified for the defence after Nairne, indicated that he had worked for many years as a drug debt collector for McKinnon. He offered this insight into McKinnon’s interest in guns:
Mr. McKinnon had the biggest collection of guns. That’s where he got most of them….I believe he was caught with 126 of them there at one time.
[44] The trial judge also permitted Nairne to describe his working relationship with McKinnon in general terms. He testified that he had worked for many years as an enforcer collecting unpaid drug debts for McKinnon. The trial judge did not allow Nairne to refer to specific acts of violence perpetrated by him in the course of that business relationship.
[45] In addition to the evidence about McKinnon’s violent lifestyle, his fascination with guns and his habit of carrying guns, the jury heard a great deal of evidence about the specific animosity between McKinnon and the appellant. The jury heard that McKinnon had threatened the appellant with guns, had attempted to have him killed, and was spreading false and dangerous rumours about the appellant.
[46] Having summarized the evidence the jury heard, I turn to the evidence excluded by the trial judge. The police engaged in an undercover operation between August 1994 and March 1996, designed to infiltrate the drug distribution network operating in the Ottawa Valley. The police considered McKinnon a primary target. Inspector Sullivan, the officer in charge of the operation, testified that McKinnon was a known drug dealer who was regarded within that milieu as a violent person. Sullivan was present when McKinnon was arrested. One hundred and twenty-nine weapons were found in his possession, ranging from handguns to shotguns to sub-machine guns. Some of the guns were loaded. There were also other weapons found at the time of McKinnon’s arrest. Sullivan believed that McKinnon was heavily involved in the buying and selling of firearms. McKinnon eventually pled guilty to one count of possession of a prohibited weapon, one count of possession of an unregistered weapon and other non-weapon related charges.
[47] Sergeant Mills worked as an undercover officer in the operation. He befriended McKinnon and spent time with him. Sergeant Mills testified that McKinnon often spoke of using violence to collect drug debts and bragged about his ability to have someone killed if he so wished. Sergeant Mills testified that McKinnon was in possession of firearms on many occasions when they were together. On the day McKinnon was arrested, Mills saw six shotguns sitting on a table in McKinnon’s residence.
[48] Officer Tanguay was the third officer to testify on the voir dire. He was involved in McKinnon’s arrest. Tanguay testified that when McKinnon was arrested, he found two handguns locked in a briefcase in the trunk of McKinnon’s car. One of the handguns was loaded and there was an ammunition clip with the other.
[49] The trial judge gave detailed and careful reasons for excluding the evidence of the officers. After determining that the evidence of McKinnon’s violent disposition and his habit of carrying guns was relevant to planning and deliberation, the trial judge identified the relevant exclusionary rule at para. 42 of her reasons:
I must consider the probative value of the evidence when compared to its prejudicial effect and only rule the evidence inadmissible if the risks of prejudice substantially outweigh its probative value.
[50] The trial judge first addressed the significance of evidence that McKinnon was armed during the confrontation to the issues of planning and deliberation. Based on the evidence as it stood at the end of the Crown’s case, the trial judge concluded that evidence that McKinnon was armed was “of ambiguous probative value” (para. 45) on the question of planning and deliberation.
[51] The trial judge next examined the probative value of the evidence given by the officers on the question of whether McKinnon had a gun during the encounter with the appellant that resulted in McKinnon’s death on February 5, 2004. The trial judge found the evidence had limited probative value for four reasons. First, the officers’ evidence referred to a timeframe that preceded the homicide by eight years. Second, the officers’ evidence referred to McKinnon’s disposition and habit in the context of carrying out his drug distribution business. There was no suggestion that the encounter between McKinnon and the appellant had anything to do with McKinnon’s drug dealing. Third, the evidence of the officers relied to a significant extent on information provided to them from untested third parties. Fourth, the officers’ evidence concerning McKinnon’s possession of a very large number of firearms at the time of his arrest was contradicted by the outcome of the criminal proceedings that flowed from that arrest. In the trial judge’s view, the disconnect between the convictions actually entered and the evidence concerning the number of weapons possessed by McKinnon undermined the reliability of the evidence as an indicator of McKinnon’s disposition or habit.
[52] The trial judge then turned to the prejudice side of the equation. In her assessment, there was a real risk that the evidence would lead the jury to conclude “that the deceased got what he justly deserved” (para. 53). The trial judge was also satisfied that permitting the evidence would introduce peripheral matters into the trial which could confuse the jury and prolong the trial. For example, the trial judge noted that the proposed evidence could put in issue the details of the two-year undercover investigation conducted between 1994 and 1996. The trial judge ultimately concluded that the potential prejudice flowing from the admission of the evidence significantly outweighed any probative value the evidence could have.
[53] Ms. Henein, in her well framed submissions, does not suggest that the trial judge applied the wrong legal test or materially misapprehended the evidence. She contends that the trial judge erred in failing to appreciate that the evidence from the police officers of McKinnon’s violent disposition and habit of carrying a weapon carried a much stronger probative force than did evidence directed at the same issues from tainted sources.
[54] An assessment of probative value against prejudicial effect requires a weighing and balancing of a variety of factors as they present themselves in the particular circumstances of the case. By its very nature, this process involves an exercise of judgment or discretion. The relative weight to be assigned to factors requires an ad hoc judgment and is not a process that can be captured by a bright line rule capable of yielding a single correct result.
[55] In light of the nature of the exercise engaged in by the trial judge, it would be inappropriate to review the product of that exercise against any standard other than reasonableness. Deference is due to the trial judge’s weighing and balancing of the relevant factors: see R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 42; R. v. Duguay (2001), 2001 CanLII 15562 (QC CA), 155 C.C.C. (3d) 407 (Qc. C.A.), at para. 47.
[56] The trial judge made her decision to exclude the officers’ evidence at the end of the Crown’s case. She declined, however, to change that decision when she did permit the defence to lead certain evidence of McKinnon’s habits from Nairne. The trial judge’s decision to exclude the officers’ evidence is properly reviewed on appeal against the entirety of the evidentiary record at trial, including the defence evidence. The core of her analysis remains unaffected by the defence evidence. Her observations concerning the limited probative value of the officers’ evidence on the issue of whether McKinnon had a gun at the time of the confrontation remain valid. Similarly, her finding of the strong potential prejudice to the trial process should the jury hear the evidence of the officers is unaffected by the defence evidence.
[57] Two things did, however, change between the trial judge’s ruling and the end of the evidence. First, assuming the trial judge was correct in describing evidence that McKinnon was armed as “of ambiguous probative value” on the issue of planning and deliberation, any ambiguity had disappeared by the end of the evidence. A jury could well have convicted the appellant of first degree murder even if satisfied that McKinnon was armed. However, if a jury found that McKinnon was not armed, I think that jury, even on the appellant’s description of the relevant events, would be hard pressed not to accept the Crown’s contention that the appellant had decided to kill McKinnon before he left the wake at Cagney’s. That conclusion opened the door to findings of planning and deliberation.
[58] My conclusion that the trial judge’s characterization understated the potential significance of whether McKinnon was armed to the issues of planning and deliberation lends support to the appellant’s contention that the excluded evidence should have been admitted. The second change in the circumstances between the trial judge’s ruling and the end of the evidence, however, points strongly toward exclusion of the evidence.
[59] By the time all of the evidence had been heard and counsel had made their closing arguments, it was crystal clear that both the Crown and the defence accepted that McKinnon had a violent disposition and that he habitually carried guns. The extracts from the Crown’s cross-examination of Nairne referred to above (paras. 41-43) demonstrate that the Crown accepted and indeed relied on the evidence of McKinnon’s disposition and habit.
[60] While the Crown and defence agreed that McKinnon had a violent disposition and a habit of carrying a gun, they disagreed as to the inference that should be drawn from that evidence. The defence contended that McKinnon’s propensity and habit supported the inference that, consistent with that propensity and habit, he was carrying a gun at the time of the confrontation with the appellant. The Crown argued, given McKinnon’s violent disposition and habit of carrying a gun, that if he was, consistent with that habit, carrying a gun during the confrontation, he would have used it against the appellant. Since he did not use his weapon, the Crown argued that it followed that he did not have a weapon.
[61] In summary, McKinnon’s disposition and his habit of carrying a gun, the factual issues to which the excluded evidence was directed, were no longer in dispute by the end of the evidence. The dispute was over what to make of that evidence in the context of the events of February 5, 2004. The evidence of the police officers would not have assisted the jury in determining what inference should be drawn. The evidence was properly excluded.
2. Did the Trial Judge Err in Failing to Instruct the Jury on the Defence of Self-Defence as Defined in s. 34(2) of the Criminal Code?
[62] Counsel submits that the trial judge erred in taking the defence of self-defence as set out in s. 34(2) of the Criminal Code from the jury.[^2] Self-defence, as defined in s. 34(2), when raised on a murder case, has three elements. First, the accused must have been subjected to an unlawful assault, or reasonably believed that he had been assaulted. Second, the accused must, when he inflicts the fatal injury, be under a reasonable apprehension of the risk of death or grievous bodily harm. Third, the accused, when he inflicts the fatal injury, must reasonably believe that he cannot otherwise preserve himself from death or grievous bodily harm: R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3, at p. 12; R. v. LaKing (2004), 2004 CanLII 39038 (ON CA), 185 C.C.C. (3d) 524 (Ont. C.A.), at paras. 42-52; R. v. Reilly, 1984 CanLII 83 (SCC), [1984] 2 S.C.R. 396, at pp. 404-405.
[63] Each of the three elements of the defence has a subjective and objective component. The trial judge found that there was no air of reality to the objective components of the second and third elements of the defence. In her view, a reasonable jury could not be left with a reasonable doubt either as to the reasonableness of the appellant’s apprehension of risk of death or grievous bodily harm at the time he killed McKinnon, or the reasonableness of the appellant’s belief at the time he killed McKinnon that he could not otherwise preserve himself from death or grievous bodily harm. For example, in concluding that there was no basis upon which the jury could have a doubt as to whether the appellant reasonably apprehended death or grievous bodily harm at the time of the shooting, the trial judge said, at para. 42:
There was no direct evidence that, once Mr. Pilon grabbed his shotgun, got out of the truck and started to chase Mr. McKinnon, Mr. Pilon had an apprehension of death or grievous bodily harm. The circumstantial evidence does not reasonably support the inference that Mr. Pilon did have this fear. It is unreasonable to infer that he would have gotten out of his truck, approached Mr. McKinnon, and then run after Mr. McKinnon with his gun not being ready to shoot, if he had an apprehension of death or grievous bodily harm by Mr. McKinnon. [Emphasis added.]
[64] The trial judge properly instructed herself that s. 34(2) could only be left with the jury if, on the totality of the evidence, there was an air of reality to that defence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at paras. 70-74. She identified and applied the air of reality analysis (paras. 33-55) holding that the defence could go to the jury only if there was evidence upon which a properly instructed jury, acting reasonably, could have a reasonable doubt with respect to each of the constituent elements of s. 34(2). The trial judge reminded herself that she was not to weigh the evidence in any ultimate sense, but to engage only in a limited weighing of the evidence to determine what inferences were reasonably available from the evidence, and whether any of those inferences could lead a properly instructed jury to acquit on the basis of self-defence as defined in s. 34(2). This function excluded the drawing of inferences from primary facts or the assessing of credibility.
[65] Counsel’s first and primary argument is that the trial judge improperly dissected the ongoing confrontation between McKinnon and the appellant into segments and examined the fatal final confrontation in isolation from the earlier events and without regard to the history between the parties and McKinnon’s reputation for violence. The trial judge was alive to all of the evidence. She specifically referred to the evidence of McKinnon’s habit of carrying a gun, his animosity toward the appellant, and his anger following the confrontation at the wake (para. 55). The trial judge also reviewed the history between the appellant and McKinnon from the appellant’s perspective (paras. 7-13), and carefully outlined the events beginning with the altercation at the wake and ending with the shooting (paras. 16-32). The trial judge had a firm grasp of the evidentiary record.
[66] While the trial judge properly considered the entirety of the record, she correctly focused on the evidence concerning the appellant’s state of mind when the fatal shots were fired. The defence of self-defence is only available if on the evidence there is a basis to conclude (or at least have a reasonable doubt) that the appellant had the required reasonable apprehension and reasonable belief when he fired the fatal shots. The events leading up to the shooting, the prior history between the parties, McKinnon’s habit of carrying a gun, and his violent disposition provide important context. However, the justification for killing as defined in s. 34(2) must exist when the fatal shot is fired. It is irrelevant to the availability of the defence that on the evidence the defence may have been available at some earlier point in the confrontation: see R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at pp. 884, 889; R. v. Pintar (1996), 1996 CanLII 712 (ON CA), 30 O.R. (3d) 483 (C.A.), at p. 506; R. v. Currie (2002), 2002 CanLII 44973 (ON CA), 166 C.C.C. (3d) 190 (Ont. C.A.), at para. 51.
[67] Counsel’s second submission arises out of the trial judge’s description of the appellant as the “attacker” when he shot and killed McKinnon. Counsel submits that the trial judge erred in law in holding that the appellant forfeited any claim to self-defence because he was the “attacker” when he fired the fatal shot.
[68] I see no error in this part of the trial judge’s analysis. Self-defence is a justification based on the necessity of self-preservation. The rationale underlying that self-preservation is fundamentally at odds with the motivation of one who attacks and kills another.
[69] In any event, the correctness of the trial judge’s analysis does not turn on her use of the word “attacker”. A person may be an attacker in the sense that he or she was the initial aggressor in a confrontation that results in a homicide. That person may still be able to claim self-defence under s. 34(2): see R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686, at para. 30. The trial judge’s reference to the appellant as the attacker was not a reference to which of the two individuals was the initial aggressor in the confrontation. When the trial judge used the word “attacker” she was focusing on the evidence pertaining to the appellant’s state of mind when he leapt from the vehicle and ran toward Cagney’s in pursuit of McKinnon. In describing the appellant as the “attacker” the trial judge was indicating that his conduct could not reasonably be seen as defensive in any sense of the word much less motivated by a reasonable apprehension of death or grievous bodily harm at the hands of McKinnon and a reasonable belief that he could not otherwise preserve himself from that fate except by killing McKinnon.
[70] Counsel next argues that the trial judge unfairly limited the subjective component of the s. 34(2) defence when, at para. 53, she declined to factor into her assessment the attitudes and beliefs of the criminal sub-culture in which the appellant lived. The trial judge described the submission in this way at para. 53:
[T]he proposition put forward by the Defence was that someone in Mr. Pilon’s shoes, namely someone with a criminal record and with friends and associates in the criminal subculture, should not be expected to call on the police for assistance if his life has been or is being threatened, or if he is assaulted. The court is being asked to accept as being reasonable that such a person does whatever he considers appropriate – even if contrary to law – to protect himself and react to any such threats or assaults. In this case, the proposition put forward by the Defence was that it was reasonable for Mr. Pilon to carry a loaded shotgun with him in his truck so that he would be ready to repel any attack by Marshall McKinnon or anyone hired as a hit-man by Marshall McKinnon, and it should be considered reasonable for him to use it to ensure his future safety. The proposition was that, in the culture in which Mr. Pilon lived, this was an appropriate and reasonable response, and therefore this is the standard that the jury should apply.
[71] In rejecting the submission, the trial judge echoed the words of Binnie J. in his concurring reasons in Cinous at para. 130 where in respect of a similar argument, he said:
[T]he only way the defence could succeed is if the jury climbed into the skin of the respondent and accepted as reasonable a sociopathic view of appropriate dispute resolution. There is otherwise no air of reality, however broadly or narrowly defined, to the assertion [of self-defence]. [Emphasis in original.]
[72] The test for self-defence created by s. 34(2) is “simultaneously subjective and objective”: R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674, at para. 13. The defence turns in part on the accused’s apprehension of death or grievous bodily harm and the accused’s belief that he cannot otherwise preserve himself. Both elements of the defence look to the accused’s state of mind, a necessarily subjective inquiry.
[73] Section 34(2) provides, however, that both the apprehension and belief must be reasonable. Reasonableness connotes a community standard against which the actions of individuals within the community can be measured. Self-defence justifies what would otherwise be murder. By its very nature, the defence is a measure of last resort. The reasonableness standard ensures that the self-defence justification will not extend to killings committed in circumstances that the community, as represented by the jury, regards as unreasonable and beyond the pale of any acceptable justification.
[74] The reasonableness inquiry is not, however, purely objective. In deciding whether an accused’s apprehension of death or grievous bodily harm was reasonable and whether his belief that he could not otherwise save himself was reasonable, the jury must consider the relevant circumstances as the accused perceived those circumstances. The jury then tests that perception against the community standard of reasonableness: Reilly at pp. 404-405; Lavallee at pp. 873-74.
[75] I see a world of difference, however, between testing the reasonableness of an accused’s apprehension and belief in the circumstances as the accused perceived them and testing the reasonableness of that apprehension and belief in light of the appellant’s personal moral code or world view. It may well be, given the criminal sub-culture in which the appellant operated, that he lived by the motto “kill now or be killed later”. In assessing the reasonableness of the appellant’s conduct, however, the jury cannot accept that motto. To do so would be to effectively eliminate the “reasonableness” requirement from the defence of self-defence. Instead of reflecting community values and the community perception of when a killing is justified, the validity of the self-defence justification would lay entirely in the eye of the killer. A law of self-defence that justified what would otherwise be murder entirely on the basis of the accused’s personal belief as to the need to kill to save himself would constitute a stunning devaluation of the rights to life and security of the person to which all members of the community are entitled.
[76] For the reasons set out above, I am satisfied that the trial judge correctly declined to leave s. 34(2) with the jury. Even if the defence should have been left, however, I would apply the curative proviso and dismiss the appeal. An appellate court, when considering the effect of a legal error, should consider any findings of fact clearly made by the jury as long as those findings are not tainted by legal error: R. v. Haughton, 1994 CanLII 73 (SCC), [1994] 3 S.C.R. 516; R. v. Merz (1999), 1999 CanLII 1647 (ON CA), 46 O.R. (3d) 161 (C.A.), at para. 60, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 240; R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456 (C.A.), at para. 88, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 232.
[77] The jury convicted of first degree murder. They were satisfied beyond a reasonable doubt that the appellant planned and deliberated the murder. The appellant does not challenge the instructions on planning and deliberation. In considering the effect of the failure to leave the defence of self-defence, assuming it was non-direction, this court proceeds on the basis that the appellant had planned and deliberated the murder before he killed McKinnon.
[78] The Crown argued that the planning and deliberation occurred before the appellant left the wake at Cagney’s. The trial judge left that position with the jury. She also told the jury that it could find that the planning and deliberation occurred between the first encounter at the steps of Harvey’s and the final fatal encounter in Cagney’s. While this possibility was available on the evidence, I think the jury’s finding of planning and deliberation is much more likely an indication that the jury accepted the Crown’s position that the appellant had decided to kill McKinnon before he left the wake and went to his truck. In any event, on either scenario, the jury was satisfied beyond a reasonable doubt that the appellant had planned and deliberated upon the murder of McKinnon before the appellant jumped out of his car on the street and chased McKinnon into Cagney’s.
[79] The appellant’s self-defence claim rested on the assertion that he shot McKinnon in response to McKinnon pointing a gun at him while standing behind a bystander whom he was using as a shield. Counsel put it this way in her factum:
When McKinnon grabbed a human shield and turned towards the Appellant, reaching for his gun, it was available for the jury to draw the inference that the Appellant reasonably believed that he could not otherwise preserve himself and therefore fired his weapon in self-defence.
[80] Even if this view of the evidence gave rise to a self-defence claim (and I agree with the trial judge that it did not), it must be considered in light of the jury’s findings of planning and deliberation. On those findings, the appellant had planned and deliberated upon the murder by the time he left his vehicle in pursuit of McKinnon and well before, on the defence theory of self-defence, McKinnon reached for his gun and created the need for the appellant to defend himself. The jury’s findings of planning and deliberation preclude the self-defence theory advanced on behalf of the appellant.
3. Did the Trial Judge Err in Failing to Instruct the Jury on the Defence of Provocation?
[81] The trial judge correctly identified the elements of the defence of provocation and subjected each of those elements to the air of reality inquiry dictated by Cinous (paras. 56-70). I agree with her analysis and do not propose to repeat it.
[82] In reaching her conclusion, the trial judge reviewed the evidence, including the appellant’s own evidence in which he testified that he fully expected an attack by McKinnon and never actually intended to kill McKinnon. The air of reality inquiry does not require that an accused’s testimony support a particular defence. There may be an evidentiary basis upon which to leave a defence with the jury even where an accused’s own testimony disavows that defence: R. v. Gill, 2009 ONCA 124, at paras. 18-21. That said, it cannot be denied that an accused’s own evidence is an important consideration in the air of reality inquiry. The appellant’s evidence offered no support for a provocation defence. Nor was there any other evidence that gave the defence an air of reality. The trial judge properly refused to leave the defence with the jury.
[83] Had I concluded that the trial judge should have left provocation with the jury, I would apply the curative proviso to that non-direction for the same reasons outlined in respect of the self-defence claim. The jury’s unimpeachable finding that the murder was planned and deliberate renders any possible provocation defence fanciful.
IV. DISPOSITION
[84] I would dismiss the appeal.
RELEASED: “DD” “MAR 20 2009”
“Doherty J.A.”
“I agree Janet Simmons J.A.”
“I agree E.E. Gillese J.A.”
[^1]: I need consider the trial judge’s ruling only as it relates to the issue of planning and deliberation. As the excluded evidence was offered to support the claim that McKinnon was armed during the confrontation with the appellant, the exclusion of that evidence could not affect the determination that there was no air of reality to the defences of self-defence and provocation. I say that because the trial judge assumed, for the purpose of considering the availability of those defences, that McKinnon was in fact armed as claimed by the appellant. She held, correctly in my view, that even on that assumption, there was no air of reality to either defence.
[^2]: In her factum, counsel also referred to s. 37. It does not appear that s. 37 was relied on at trial and counsel did not contend in oral submissions in this court that s. 37 should have been left with the jury. In my view, there is no need to consider s. 37. If the appellant does not have a tenable self-defence claim under s. 34(2), he does not have one under s. 37 in the circumstances of this case.