Court of Appeal for Ontario

Citation: R. v. Cornelius, 2011 ONCA 551 Date: 2011-08-10 Docket: C49484

Before: Rosenberg, Juriansz and LaForme JJ.A.

Between:

Her Majesty the Queen (Respondent)

and

Donny Cornelius (Appellant)

Counsel: Jill R. Presser, for the appellant Lucy Cecchetto, for the respondent

Heard: April 6, 2011

On appeal from conviction entered by Justice D. Little of the Superior Court of Justice, sitting with a jury, on November 30, 2007.

Rosenberg J.A.:

[1] The appellant appeals his conviction for second degree murder and for a number of firearms offences by a court composed of Little J. and a jury. The appellant submits that the trial judge did not adequately direct the jury in a number of respects concerning after the fact conduct, the evidence in support of the defence, the mental elements for murder and manslaughter and the elements of the firearms offences.

[2] For the following reasons, I would dismiss the appeal

THE FACTS

[3] On December 13, 2005, the deceased, Jeff Davis, was shot to death outside his friend’s townhouse. The principal issue at trial was whether the appellant or his neighbour Justin Antonucci fired the fatal shots. Both testified and each claimed that the other brought the gun to the scene of the shooting and fired the fatal shots.

[4] Antonucci and Davis worked together at a roofing company. The altercation that led to the death of the deceased had its origin in a dispute over a $40 drug debt that Antonucci owed to Davis. Following the company Christmas Party, Antonucci, Davis and others went to the townhouse of Kelly Tardiff, a fellow employee. The people at the townhouse were drinking and consuming drugs and in the course of the evening, Davis became increasingly belligerent towards Antonucci over the drug debt. Eventually, he left the room and Antonucci and his girlfriend left the townhouse.

[5] When Antonucci arrived back at his apartment building his girlfriend went into his unit. Antonucci went over to the neighbouring unit, where the appellant lived and was invited in. Antonucci told the appellant that he had been in a fight over a drug debt. There was a dispute about Antonucci’s purpose in going to the appellant’s home.

[6] There was some dispute about whether Antonucci asked the appellant for money to repay Davis and whether he asked the appellant to accompany him back to Tardiff’s home. In any event, the appellant and his girlfriend Melissa Henry, Antonucci, and two of their acquaintances Michael Hicken and Tyler Pangborn, returned to the Tardiff home in Hicken’s father’s car. When they reached the Tardiff home, Hicken and Pangborn remained in the car while the appellant and Antonucci headed towards the home. According to the appellant, as they approached the home Antonucci pulled out a gun and said that if things get out of hand he had “this”. The appellant demanded that Antonucci give him the gun. He did so and the appellant put the gun in his pocket. Antonucci denied that he ever had a gun.

[7] While there were some discrepancies among the various witnesses as to what happened next, it is sufficient for the purposes of this appeal to set out the two competing versions, one favouring the appellant’s theory that Antonucci killed the deceased and the other version that it was the appellant who killed the deceased. There was some evidence supporting both versions, in addition to the testimony of the appellant and of Antonucci.

[8] The appellant and Antonucci approached the Tardiff residence. Antonucci knocked on the door and Davis came out moments later. After some kind of confrontation with Antonucci, he approached the appellant and asked Antonucci if the appellant was his “heavy”. According to the appellant, he started to panic as Davis approached. He pulled out Antonucci’s gun and fired a warning shot into the ground. Davis kept charging at him and began to punch him. The appellant attempted to protect himself as Davis punched him. The appellant dropped the gun as he fell into a snowbank. He saw Antonucci run up, pick up the gun and shoot Davis three times. Antonucci testified that he never picked up the gun; rather the appellant fired the warning shot and then fired three more shots into Davis.

[9] None of the people who came with the appellant and Antonucci or from the Tardiff home testified to seeing who fired the shots into Davis. There was one independent witness who did see the shooting. Tardiff’s next-door neighbour, Heather-Anne Ference, described the confrontation in a way that indicated that the appellant was the shooter of both the warning shot and the three fatal shots. However, in cross-examination, her evidence became somewhat confused and the appellant submits that her description of the shooter’s clothing more closely resembled the clothing worn by Antonucci.

[10] After the shooting, Antonucci and the appellant ran back to the car and Hicken drove them back to the appellant’s apartment. All four men and the appellant’s girlfriend entered the appellant’s apartment. According to the appellant, Antonucci told him not to say anything about the shooting. According to Antonucci, the appellant threatened to harm Antonucci’s daughter and girlfriend if he said anything to the police. He saw the appellant put the gun in his safe. The appellant denied this. After Antonucci and Hicken left the appellant’s apartment, the appellant and Pangborn packed up the contents of the safe to take to his mother’s house on the Oneida reserve. According to the appellant, the safe only contained some marijuana and $3500. According to Pangborn, they also packed up a gun, which looked like the gun from the shooting. Pangborn testified that he had seen a gun at the appellant’s apartment on an earlier occasion. The appellant explained that he took the items out of his apartment because he assumed the police would be coming as a result of the shooting and he did not think it would look good for them to find the marijuana and cash.

[11] Antonucci testified that the following day, the appellant told him to burn his clothes. The appellant denied this and testified that in fact Antonucci told him to get rid of his clothes. Upon his arrest, the appellant gave a statement to the police in which he denied being at the scene of the shooting. At trial, he testified that he lied because he was scared and had agreed with Antonucci not to give evidence against him. For his part, Antonucci also lied to the police and originally identified an innocent person as the shooter.

[12] Gunshot residue was found on the appellant’s and Antonucci’s clothing. It was not possible to know whether the residue was from holding the gun or being near to it when it was discharged. The deceased suffered three gunshot wounds: one in the neck, chest and thigh. The gunshot wound to the neck was fatal.

THE GROUNDS OF APPEAL

[13] The appellant raises the following grounds of appeal:

(1) Misdirection with respect to post-offence conduct.

(2) Failure to accurately summarize the evidence in support of the defence in the charge to the jury.

(3) Misdirection with respect to the mental element for murder.

(4) Misdirection with respect to the fault requirement for manslaughter.

(5) Misdirection with respect to the weapons offences.

(6) Failure to leave the defence of accident.

ANALYSIS

(1) Misdirection with respect to post-offence conduct

[14] There were significant pieces of post-offence conduct that the Crown relied upon to prove that the appellant had fired the fatal shots. Depending upon the version of events accepted by the jury, that evidence included the flight from the scene, threats to Antonucci, disposal of the gun and the lies to the police. The charge to the jury specifically dealing with post-offence conduct was brief:

Look at the evidence in this case that happened after the shooting, evidence of what a person did or said after the offence. What Mr. Cornelius did, things like allegations that he threatened Justin [Antonucci], allegations that he disposed of items and so on, may indicate that it is what a person would do if they were guilty but it may not. It may be consistent with a person who has committed the offence and inconsistent with the evidence of someone who did not, or there may be an explanation for it and in this case, Cornelius gave an explanation for the trip to the reserve and as I recall, he denied any threats.

[15] In reviewing the appellant’s testimony, the trial judge touched upon the gun, noting that the appellant denied taking the gun back to his apartment. He did not otherwise deal with the post-offence conduct.

[16] The appellant submits that the charge to the jury concerning after-the-fact conduct was deficient in failing to explain:

• the need to be cautious about drawing incriminatory inferences from such conduct;
• the need to decide whether the conduct even occurred;
• the need to consider alternate innocent explanations such as panic, fear or embarrassment;
• the need to consider whether the conduct was referable to some other offence such as handling the gun or commission of drug offences;
• the need to consider whether the conduct was referable only to culpability for the homicide, not murder.

[17] While the appellant submits that the level of culpability was an issue in this case, i.e. whether the appellant was guilty of murder or manslaughter, the principal issue was whether the Crown proved that the appellant had fired the three fatal shots. The appellant admitted firing the warning shot, in self-defence, but testified that it was Antonucci who fired the fatal shots. The Crown’s case was that it was the appellant that fired all of the shots, including the fatal shots. The only items left to the jury by the trial judge on the issue of identity, or as the trial judge put it, “may be consistent with a person who has committed the offence”, were the threats to Antonucci and the disposal of the “items”. None of the other potential pieces of evidence were left to the jury as post-offence conduct. This is not surprising given that Antonucci also fled the scene and lied to the police.

[18] The most recent decision from the Supreme Court of Canada on the directions to be given to the jury in cases where there is evidence of post-offence conduct is R. v. White (2011), 2011 SCC 13, 267 C.C.C. (3d) 453. While there were three sets of reasons, the main issue dividing the members of the court was the application of the law to the particular set of facts. As I read the decision, there was little dispute as to the legal principles. The point that principally divided the members of the court was the use to be made of demeanour evidence as potentially giving rise to an inference of consciousness of guilt. That issue does not arise in this case.

[19] The principles relevant to this case were set out by Binnie J., writing for himself and McLachlin and Fish JJ. While he was in dissent, Binnie J.’s analysis of the legal principles was adopted by Charron J. writing for herself and Deschamps J. For the purposes of this case, the important points are set out in paragraphs 137 to 140 of the reasons of Binnie J. Charron J. expressed her agreement with those principles at paragraphs 105 and 107 of her reasons. I would summarize the applicable principles as follows:

1. It is not the case that anything done by an accused after the offence is subject to a special warning.

2. “The general rule is now, as in the past, that it is for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct put in evidence against the accused is related to the commission of the crime before them rather than to something else, and if so, how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role”: para. 137.

3. However, there may be cases where a warning is required because jurors may attach more weight to the post-offence conduct than is warranted. “This risk exists with respect to some types of post-offence conduct relied upon by the Crown and in those cases it only makes sense for the judges to alert the jurors to what the courts have collectively learned over the years, especially when that learning may for some jurors be counter-intuitive”: para. 138.

4. However, the bulk of so-called post-offence conduct “will simply flow into the record as an unremarkable part of the narrative”: para. 140.

5. Like all other circumstantial evidence, evidence of post-offence conduct will be relevant and admissible depending on whether it has some tendency “as a matter of logic, common sense, and human experience... to help resolve the issues in the case”: para. 140.

[20] In my view, the two items of evidence left to the jury in this case did not require a special caution. The threats to Antonucci and removing the items for the safe do not fall within the category of evidence, like the flight evidence considered in White, where there was a risk that the jury would give it more weight than warranted, or as it was expressed by Rothstein J. at para. 23, the risk that the jury would “jump too quickly from evidence of post-offence conduct to an inference of guilt”.

[21] I begin with the threats to Antonucci. The appellant’s position on this issue was simple and straightforward. He denied making the threats and, to the contrary, claimed that it was Antonucci who advised him to get rid of his clothing. There was nothing remarkable about this evidence. So far as the appellant knew, only he and Antonucci were witnesses to the shooting. If he threatened Antonucci it was for only one purpose, to persuade Antonucci to cover-up for him. This was the kind of evidence that could be safely left to the jury members to use their own experience and common sense to decide what weight to attach to it.

[22] The removal of the items from the safe to hide them at the appellant’s mother’s reserve falls within a similar category. I begin with the appellant’s version. The appellant testified that he took the money and the marijuana from the safe because he was concerned that the police would come to his apartment and it would not look good. It might have been helpful had the trial judge reminded the jury of this explanation, but this case did not turn on the disposal of the marijuana and the money. The real issue was the disposal of the gun. And, the probative value of the evidence concerning the gun turned not on any inference of consciousness of guilt, but simply on whether the appellant had the gun in his possession after the shooting. Again there was no risk that the jury would place undue emphasis on the question of disposal of the gun. Their attention would be focused on the evidence of Pangborn, Antonucci and the appellant. If the appellant’s version of the shooting was correct, he would not have had possession of the gun after the killing. If Antonucci and Pangborn were telling the truth, and the appellant had possession of the gun, this was highly probative evidence supporting an inference that he had shot the deceased.

[23] In my view, this was one of those cases, possibly rare, where no special cautionary instructions were required to enable the jury to properly deal with the post-offence conduct. This evidence could be dealt with like the other circumstantial evidence in the case, leaving it for the jury to draw what inferences they thought proper.

[24] I am also satisfied that this is not a case where it was necessary to instruct the jury expressly that this evidence could be relevant only to culpability for an unlawful homicide, not murder. In the brief passage dealing with the post-offence conduct, the trial judge simply told the jury they could consider the evidence to decide whether it was consistent with a person who has committed “the offence”. The passage about this evidence almost immediately followed the trial judge’s W.D. instruction where the trial judge reminded the jury that the appellant had testified and denied that he shot and killed the deceased. The jury would not have had any difficulty understanding that the purpose of this evidence was to identify the killer.

[25] I would not give effect to this ground of appeal.

(2) Failure to accurately summarize the evidence in support of the defence in the charge to the jury

[26] The appellant submits that the trial judge erred in failing to fully and accurately summarize the evidence favouring the defence in two respects: (1) the evidence of Heather-Anne Ference, the next-door neighbour, and (2) Tyler Pangborn’s evidence about the gun being removed from the safe.

[27] The complaint about Ms. Ference’s evidence turns on her description of the clothing worn by the shooter. The appellant submits that the trial judge erred in failing to instruct the jury that Ms. Ference testified that the shooter was wearing a white shirt under a dark jacket. According to the appellant, this was a significant omission because several witnesses testified that Antonucci was wearing a white shirt under a grey ski jacket whereas the appellant was wearing a red hooded sweatshirt. In their submissions, counsel carefully reviewed Ms. Ference’s evidence. Having considered those submissions and reviewed Ms. Ference’s testimony I am not satisfied that the trial judge erred.

[28] Central to the appellant’s submission is the assertion that Ms. Ference described the shooter as wearing a white shirt. To appreciate the nature of this submission, I need to expand somewhat on Ms. Ference’s evidence as to what occurred that night. She had gone to bed in her bedroom on the second floor of her house, which was next door to the Tardiff residence. At some point, her attention was attracted by a noise like a door slamming. She looked out the window and down onto the scene. In her description of the events she referred to the three people she saw as A, B and C. A is obviously the deceased. She described A coming out of the house and confronting B who was directly in front of him, with C being over to the side. B backed up towards a snow bank as A moved forward. By this time she had lost track of C. She then saw B bring his left hand up and she heard a bang and saw a flash. A’s hand went up to his face and then there was another shot and A grabbed his stomach. There was a third shot and A tried to run back to the Tardiff residence but he collapsed. Ms. Ference immediately called “911”. She next saw C in a car apparently gesturing at B to come to the car. B headed towards the car and at one point bent down and picked something up.

[29] In examination-in-chief, Ms. Ference described B (the shooter) as having a “pretty-boy haircut” meaning messy on top and short on the sides. He was wearing a black leather jacket, but not “your typical” jacket, it was more like a denim jacket with no collar and a zipper, with a “light” or “light blue” shirt underneath and some dark pants. Later, she also described the shirt as “the white shirt, or the light blue, like it was a light coloured shirt”. She was unable to give much of a description of C as she really wasn’t paying attention to him.

[30] In cross-examination, trial counsel for the appellant used diagrams to try to understand Ms. Ference’s evidence. It is in the use of these diagrams that the descriptions become a little more confusing. Counsel put to Ms. Ference an exhibit from the preliminary inquiry in which she also used A, B and C but B at the preliminary was C at the trial and C at the preliminary was B at the trial. To make the evidence less confusing, counsel had Ms. Ference mark a new exhibit in which the shooter is described as “white shirt”. However, Ms. Ference maintained her description of the shooter as wearing a leather jacket with a light coloured shirt. She adopted her preliminary inquiry evidence that the third person was wearing a jacket and a pair of jeans, which she described as darker clothes. She also described the shooter as having a darker complexion than the third person.

[31] The upshot of this evidence is that the shooter had the pretty-boy haircut, was of darker complexion than the third person and was wearing a dark jacket with a light coloured shirt. The third person was wearing darker clothes, but Ms. Ference did not describe the colour of his shirt. The jury was in the best position to compare the complexions of the appellant and Antonucci. However, the photographs that were taken of both men shortly after the shooting show the appellant having a darker complexion than Antonucci, and his haircut matches the description of the shooter; Antonucci’s haircut is different. The other point that must be made about the photograph is that while the appellant claimed that he was hit in the face by the deceased, there is no sign of injury. Finally, the shooter used his left hand and the appellant is left-handed. Mr. Antonucci is right-handed.

[32] The evidence as to what the appellant and Antonucci were wearing is far from clear. Descriptions of Antonucci’s shirt vary from a white shirt to a black and white shirt, all black shirt, all white shirt, striped shirt. The description of the appellant’s clothing was consistent as a red hooded sweatshirt.

[33] It may be that Antonucci’s clothing more closely resembled the clothing of the shooter as described by Ms. Ference, but it would not be correct to say that she unequivocally testified that the shooter was wearing a white shirt. Thus, the trial judge was not required to charge the jury to that effect. The jury was aware of the competing inferences to be drawn from Ms. Ference’s evidence from counsels’ jury addresses. The trial judge’s review of Ms. Ference’s evidence was extensive and otherwise accurate, but for one matter. In the charge to the jury he described the shooter as having a lighter complexion than the third person. Following an objection from Crown counsel and review of the recording of the evidence, the trial judge corrected this error. Defence counsel at trial (not Ms. Presser) did not object to the trial judge’s summary of Ms. Ference’s evidence even when the issue concerning her description of the complexion was raised by Crown counsel.

[34] The trial judge’s failure to refer to this single piece of evidence about the colour of the shirt of the shooter did not breach his duty to fairly put the evidence in support of the defence.

[35] The complaint about the trial judge’s treatment of Mr. Pangborn’s evidence about seeing the appellant put the gun in a bag concerns an apparent admission by Mr. Pangborn that he saw a “black object” rather than a gun put in the bag. During examination-in-chief, by adopting two statements he made to the police, Mr. Pangborn testified that he had seen the appellant with a handgun about a month before the shooting. In the statements, Pangborn described the gun in some detail. He further testified in chief that he saw the appellant pack that same gun in the bag along with the marijuana before they went to the Reserve. In cross-examination he was referred to the testimony he gave at the preliminary inquiry, where he said that the gun the appellant put in the bag was not the one the appellant had shown him earlier. While he maintained that his testimony at trial was correct, he conceded that it could have been a different gun. He explained that he was not very familiar with guns. Finally, while he stated on several occasions that he saw the appellant put a gun in the bag, he somewhat qualified that statement in this exchange with defence counsel:

Q. Now, you say, sir, that at some point, you see Mr. Cornelius put a weapon into a bag, is that correct?

A. Yes.

Q. And if I were to suggest to you, sir, that that in fact, is not true and that that did not happen, what would you have to say to that?

A. I don’t know.

Q. Well, is it possible that you didn’t see that?

A. No, I seen – well, I thought I seen the gun put in there. Like, I see a black object put into the bag.

Q. Now, it’s either you saw that or you think you saw that, so it’s one or the other.

A. Okay, I think I seen the gun go into the bag.

[Emphasis added.]

[36] The cross-examination continued with a few more questions that simply demonstrated Mr. Pangborn was having difficulty understanding counsel’s questions and, in particular, in understanding how he was to respond to suggestions made by counsel with which he was to agree or disagree. He did disagree with counsel’s suggestion that he had not seen a gun in the appellant’s possession on a previous occasion.

[37] In his summary of Mr. Pangborn’s evidence, the trial judge accurately pointed out that Mr. Pangborn conceded in cross-examination that the gun he saw the appellant put in the bag may have been different from the one he saw on the earlier occasion. The trial judge did not refer to Mr. Pangborn’s further concession when he referred to a black object being put in the bag. In my view, the failure to refer to this piece of evidence did not deprive the appellant of a fair trial. It is not at all clear that Mr. Pangborn resiled from his earlier and later testimony that he saw a gun put in the bag. In context, this evidence was just not critical to the defence case. Again no objection was taken by trial counsel to the trial judge’s summary of Mr. Pangborn’s evidence.

[38] I would not give effect to this ground of appeal.

(3) Misdirection with respect to the mental element for murder

[39] This issue can be dealt with briefly. On two occasions, in reciting the elements of murder as defined in s. 229 (a)(ii) of the Criminal Code, the trial judge told the jury that they had to decide if the appellant meant to kill the deceased or meant to cause him bodily harm and knew that it was likely that it would kill Davis “or [was] reckless as to whether or not he died”. The correct instruction using the word “and” instead of “or” was given before and after the erroneous instructions. More importantly, the correct description of the elements of the offence was contained in the decision tree, copies of which were given to the jurors during their deliberations. The trial judge’s mistake was harmless in the circumstances.

(4) Misdirection with respect to the fault requirement for manslaughter

[40] At the request of the defence, the trial judge told the jury that they could reach a verdict of manslaughter by two different routes. The most obvious route was as an included offence to murder. But, the defence also wanted manslaughter left to the jury on the theory that the warning shot, which the appellant admittedly fired, was an unlawful act that contributed to the death, even if it was Antonucci who fired the fatal shots. The defence then argued that the jury could acquit even of manslaughter, on the basis that this unlawful act did not cause the death. This ground of appeal concerns this alternative route to manslaughter.

[41] The appellant submits that in dealing with this alternative route to manslaughter the trial judge failed to adequately define for the jury the fault element of unlawful act manslaughter. In my view, there is no merit to this ground of appeal. At trial, there was no dispute that shooting a firearm in the direction of an unarmed man was an unlawful act for the purpose of grounding liability for manslaughter. The issue on this theory of manslaughter was whether the act of Antonucci in picking up the gun and shooting the deceased three times, broke the chain of causation. The question of whether the shooting of the gun at the unarmed deceased in a warning shot was an unlawful act was simply never an issue in the case. Defence counsel, who had requested that this theory of liability be left to the jury, raised no objection to the directions given.

[42] Finally, it seems to me that even if the charge was deficient, there was no substantial wrong or miscarriage of justice. The way that the charge to the jury was structured, the jury would only reach unlawful act manslaughter based on the warning shot if they had concluded that the appellant did not fire the fatal shots. Having convicted of murder, it is apparent that the jury was satisfied beyond a reasonable doubt that the appellant fired the fatal shots.

[43] This is not a case like R. v. Haughton, 1994 CanLII 73 (SCC), [1994] 3 S.C.R. 516, where the court was unwilling to reason back from the jury’s verdict convicting of the full offence where an included offence was not left to the jury. As Sopinka J. said in Haughton:

The application of s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, requires the court to consider whether a jury properly instructed could, acting reasonably, have come to a different conclusion absent the error. In applying this test the findings of the jury in the case under appeal may be a factor in determining what the hypothetical reasonable jury would have done, provided those findings are not tainted by the error. In cases in which an included offence is not left with the jury, a conviction by the jury of the more serious offence cannot generally be relied on by reason of the fact that it may very well be a reaction against a complete acquittal. There is an apprehension that the jury convicted because they had no other alternative than acquittal and acquittal was unpalatable. In this case, the jury had an alternative: they could have convicted of manslaughter. It cannot be said that it did not do so by reason of the failure to charge them by reference to the objective standard of liability with respect to manslaughter. In convicting of murder the jury must have found that the appellant had subjective foresight of death. It is impossible to hold that they came to this conclusion because they were unable to conclude the appellant had subjective foresight of bodily harm. [Emphasis added.]

[44] In my view the jury’s verdict was not tainted by the alleged error. In this case, the jury had two routes to manslaughter; two bases to avoid the unpalatable choice of a complete acquittal. The complaint here really amounts to a submission that it would have been too easy for the jury to have convicted of manslaughter. Since the jury convicted of murder, the alleged misdirection respecting the warning-shot route to manslaughter was of no moment.

(5) Misdirection with respect to the weapons offences

[45] This final ground of appeal relates to the summary manner in which the trial judge dealt with the weapons offences. The appellant submits that the trial judge directed verdicts of guilty with respect to the weapons offences. Like the previous ground of appeal, this ground of appeal is founded on the theory that the appellant did not fire the fatal shots. The appellant’s submission on these counts rests on the proposition that the appellant did not bring the gun to the altercation, that he took the gun from Antonucci to keep the peace and that he did not fire the fatal shots. The appellant’s own evidence that he drew the gun and fired on the unarmed victim coupled with the jury’s finding that he fired the three fatal shots, renders any possible error of no consequence.

The Defence of Accident

[46] In oral argument, counsel for the appellant raised a further ground of appeal; that the trial judge erred in failing to leave the defence of accident. There are two concerns with this ground of appeal. First, in my view, there is no air of reality to the defence of accident. Second, in any event, based on the charge to the jury, if the jury had any doubt that the gun discharged accidentally, they would only have convicted of manslaughter. Given that the jury rejected both routes to manslaughter, it can safely be said that the jury had no doubt that the appellant intentionally discharged the gun.

[47] The defence of accident, raised for the first time on appeal, is based on the theory that even if the jury accepts that the appellant was the shooter of the fatal shots, it is possible that the gun went off accidentally as the appellant fought with the deceased. That defence counsel did not seek to have this defence put to the jury is not, of course, fatal to this ground of appeal, provided there is an air of reality to the defence: R. v. Mathisen (2008), 2008 ONCA 747, 239 C.C.C. (3d) 63 (Ont. C.A.) at para. 93. However, there is no air of reality to this theory; it would require a finding that the gun discharged accidentally three times, into the deceased, during the course of this struggle. It is inconsistent with all of the accounts given by all the witnesses, especially the independent witness, Heather-Anne Ference.

[48] Counsel for the appellant relies upon the version of events given by Mr. Pangborn and Mr. Antonucci to support an accident defence. However, Mr. Pangborn only testified about a struggle before the appellant fired the warning shot. There is nothing in his evidence that speaks to the manner in which the three shots that hit the deceased occurred. Mr. Antonucci’s evidence also does not assist. He testified to hearing three shots. The first shot he heard may have been the warning shot. In examination in-chief, he testified that the second shot occurred during what he described to be a “scuffle”. But, the third shot went off when the scuffle was over and both men were standing. In cross-examination, he testified that the last two shots may both have occurred when the two men were standing after the scuffle. In fact, defence counsel suggested to Mr. Antonucci that both shots were fired when the two men were standing. Mr Antonucci said he was not sure.

[49] In any event, any doubt that the shots were fired accidentally would have translated into a verdict of manslaughter. The jury was charged that if the appellant did not have the intent for murder he could only be convicted of manslaughter. If indeed the jury had a reasonable doubt that the appellant discharged the gun three times accidentally, he could not have had the intent for murder.

[50] I would not give effect to this ground of appeal.

DISPOSITION

[51] Accordingly, I would dismiss the appeal from conviction.

Signature: “M. Rosenberg J.A.”

“I agree R. G. Juriansz J.A.”

“I agree H. S. LaForme J.A.”

RELEASED: “MR” AUGUST 10, 2011