COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Krasniqi, 2012 ONCA 561

DATE: 20120829

DOCKET: C50478

Doherty, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Arber Krasniqi

Appellant

Timothy E. Breen, for the appellant

Elise Nakelsky and Scott Latimer, for the respondent

Heard: June 5, 2012

On appeal from the conviction entered on November 27, 2008 and the sentence imposed on February 26, 2009 by Justice Frank N. Marrocco of the Superior Court of Justice, sitting with a jury.

LaForme J.A.:

A. Overview

[1] The appellant was convicted of second degree murder for the stabbing death of 24-year-old Jordan Ormonde. He was sentenced to life imprisonment without eligibility for parole for 14 years.

[2] The stabbing took place at a Toronto restaurant and bar on Danforth Avenue in April 2007. At the trial before Marrocco J. and a jury, the appellant testified and admitted that he stabbed and killed Mr. Ormonde. However, he testified to the effect that he was acting in self-defence.

[3] At the trial, defence counsel requested and received a jury instruction on the defence of self-defence pursuant to s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46. He also requested and received what is referred to as a rolled-up charge, which instructed the jury to consider the cumulative effects of the potentially provocative acts of others and intoxication on the issue of the appellant’s intent to commit murder.

[4] On his appeal from conviction, the appellant’s primary argument is that, although defence counsel did not ask the trial judge to instruct the jury on the defence of provocation in s. 232 of the Criminal Code, the trial judge erred in not doing so. The appellant raises five further grounds of appeal, one concerns the admission of evidence of the peaceable disposition of the victim, while the others involve the adequacy of the instructions to the jury.

[5] I am satisfied that there was no air of reality to the defence of provocation as defined in s. 232. The trial judge was not required to instruct the jury on the elements of this defence. The trial judge’s decision to admit the evidence of the deceased’s peaceful disposition was soundly based. In all other respects, the trial judge’s charge was fair, balanced and adequately instructed the jury on how to apply the law to the evidence.

B. The evidence at trial

(a) The Crown’s evidence

[6] Early in the morning of April 22, 2007, Jordan Ormonde was out with his girlfriend, Zoe Papathanasakis, celebrating a friend’s birthday at Kokkino, a restaurant and bar located on Danforth Avenue. Kokkino caters to a largely Greek clientele. Many of the birthday party guests, including Jordan, worked at Mezes, another Danforth Avenue restaurant.

[7] The appellant entered Kokkino just before last call at 2:00 a.m. A waiter at Kokkino, Loukas Pappas, testified that he noticed the appellant arrive with two companions. The appellant’s companions were wearing t-shirts displaying the Albanian flag.

[8] Loukas testified in chief that he noticed the appellant’s group because they were not regulars and they were acting very strange. In cross-examination, Loukas testified that his attention was drawn to them because they were dancing by themselves and the appellant was acting like Al Pacino in Scarface. He agreed with defence counsel’s suggestion that they looked like Mafia.

[9] Loukas was carrying a tray of drinks when he unintentionally bumped into the appellant’s shoulder. According to Loukas, the appellant shouted something along the lines of, “Don’t fucking touch me.” or “You know who fucking I am?” “I’m Albanian.” The appellant then gestured towards his hip area, implying that he was carrying a weapon. Loukas testified that he thought he said, “I’ll be back.” He told his co-workers what had happened and warned them to keep an eye on the appellant.

[10] Chris Sakkas, who was a guest of the birthday party, testified that he was standing beside Zoe and Jordan singing aloud to a Greek song when the appellant approached him and asked him to dance. Chris replied: “I don’t dance, I just sing.” The appellant responded: “Come on, everybody that sings, dances.” Chris testified that this conversation took place in Greek and he asked the appellant if he was Greek. The appellant responded that he was Albanian. Chris said he sensed some tension, so he pointed to his Greek soccer jersey and asked if the appellant liked this team. The appellant laughed and put his arm around Chris in a manner that was a little aggressive.

[11] Traditional Greek music was playing and people were dancing in a circle dance, holding hands. The appellant joined the dance and took Zoe’s hand. After the circle dance ended, Chris testified that the music changed to a song that is danced with partners, and Zoe danced with the appellant. Chris joked to Jordan that it would be funny if Jordan went over and said, “I’m her boyfriend”. Chris said he thought this would be funny because the appellant was a small man, while Jordan was much bigger. Jordan remained passive and responded, “Yeah, yeah, you know, in a while, in a while.”

[12] Zoe then returned to be with Jordan and Chris. According to Zoe, after she stopped dancing, she was talking to Jordan when she felt someone grab her wrist from behind. It was the appellant, who was holding a chair in his other hand. The appellant told her to dance on the chair. She said, “No, thanks”. He repeated the demand a couple more times and she repeated, “No, thank you.” He was squeezing her wrist really tight and trying to pull her towards the chair. Eventually he let go and moved towards the bar.

[13] At about this time, Tommy Kalogeropoulos, another birthday party guest, started talking with Jordan and Zoe. The appellant approached again and made a comment. According to Zoe, he said something like, “I’m watching her dance.” Tommy and Jordan could not hear what he had said. Jordan said, “Pardon me?”, but did not get a response. Tommy said, “Sorry, I can’t hear you” more than once. He still could not hear exactly what the appellant was saying, but distinctly heard the word “fuck”. He saw that the appellant had a mean look on his face and was belligerent, “[l]ike he was getting a little louder and a little bit more aggressive.” Tommy started to think that “maybe this guy is not a nice guy.” Tommy recalled Jordan asking, “What the fuck’s this guy’s problem?”

[14] Tommy testified that he kept an eye on the appellant, whom he saw flailing his hands, yelling, and becoming agitated. The appellant came close to Tommy and Tommy asked him, “What the fuck is your problem?” Tommy recalled saying to the appellant: “We’re here for a birthday party. ... You’re messing with the wrong group of guys. ... We just want to have a good time. Please just leave us alone.”

[15] Chris saw the confrontation between Tommy and the appellant. He heard Tommy say in what sounded like a question, “He’s a nice guy, I’m not.” Chris saw the appellant and a friend of the appellant become aggressive, yelling, “shut the fuck up, get the fuck out of our face”. Tommy testified that the appellant grabbed him by the shirt and then Tommy tried to hit his arms down. Chris testified that either the appellant or the appellant’s friend shoved Tommy. According to Tommy, the appellant’s friend tried to get in between them to make sure nothing happened. The appellant was starting to lose it. After going after Tommy, he then started going after Jordan.

[16] Chris testified that after Tommy was shoved, Jordan stepped in and grabbed the appellant with his right hand and put him up against the bar “in order to control him.” Chris briefly looked away, and when he looked back, the appellant was holding a knife in the air above his head. Chris did not see the knife make contact with Jordan, but then saw blood gushing from Jordan’s neck. He saw the appellant and his friend run out of the restaurant, chased by other patrons.

[17] Chris applied pressure to Jordan’s wound in an attempt to stop the bleeding. Jordan replaced Chris’ hand with his own. He was assisted to a chair, when he began to shake violently and fell to the floor, where he was cared for until the ambulance arrived. The following night, Jordan died from his injuries in hospital.

[18] Chris and Tommy were both involved in an attempt to chase down the appellant, along with other patrons of Kokkino. They testified that a police cruiser became involved in the pursuit, but the appellant and his friend managed to get away.

[19] The appellant was eventually apprehended three months later in New York City. Two women from Toronto who were visiting New York met him in a bar and recognized him from wanted posters in Toronto. They alerted the Toronto Police Service, which requested the United States Marshal Service to arrest him.

[20] Two U.S. marshals apprehended the appellant in an apartment where he was staying. The appellant spontaneously admitted to the marshals – who were not investigating the crime but only effecting the arrest – that he had stabbed and killed the victim. The marshals decided to read the appellant a Miranda warning. The appellant continued to talk to them and described what had happened on the night in question, including making the following statement, as recalled by one of the marshals who testified at the trial as follows:[^1]

He stated that he was on the bar, or on top of a bar, and this angered some of the individuals in the bar. Mr. Krasniqi said that he was knocked off the bar, and that angered him, and that he, Mr. Krasniqi, wasn’t going to take that. He said he pulled out a knife, stabbed an individual in the neck. Said he had… blood all over him, and then he got scared and fled.

(b) Defence Evidence

[21] The appellant testified in his own defence. He said that on the evening in question, he had been drinking at a bar on the Danforth called Iliada with an acquaintance/friend named Sam. The appellant, who is of Albanian origin and a carpet installer by trade, said that Sam was also an Albanian carpet installer whom he had met on a construction site four or five months earlier.

[22] The appellant and Sam left Iliada to get food. They stopped at Sam’s van to see a carpet tool that Sam had mentioned. The appellant noticed a knife in the van, which Sam said could be used for carpeting stairs. The appellant asked if he could have it. The appellant took the knife and placed it in his front pants pocket.

[23] As the appellant and Sam walked along Danforth Avenue looking for somewhere to eat, Sam saw a friend of his named Tony standing outside Kokkino. Tony invited them to come inside, which they did.

[24] Tony introduced Sam and the appellant to his friends. The appellant testified that he had a drink and two shots with them. According to the appellant, he noticed Loukas watching them. He said that Loukas looked at his group like they were “dirt people”. According to the appellant, Chris Sakkas, who was wearing a Greek soccer shirt, approached his friend Sam, who was wearing an Albanian soccer shirt, and said, “Oh, look at that, that’s better than yours.” The appellant said that he told Chris that he was not too interested in soccer and said, “Let’s drink and have fun, dance.” He denied asking Chris to dance, or speaking to him in Greek, noting that he only knows a few Greek words.

[25] He testified that after Chris left, he danced with one of the women in his group, Maggie. They later joined in the circle dance. He acknowledged holding Zoe’s hand in the circle dance. When the music changed, he said that Zoe danced with them. According to the appellant, Maggie danced on a chair and then he did the same. He told Zoe that she was next, but she declined. He testified that Jordan came over and grabbed Zoe. The appellant apologized and Jordan said, “Get the fuck out of here”, so the appellant left and tried unsuccessfully to get more drinks.

[26] According to the appellant, he was dancing with Maggie when Loukas came along and punched him hard in his back. He said that Loukas asked him, “What the hell you doing? You know that’s my buddy’s girlfriend.” The appellant told him, “Get the hell out of here.” Loukas told him, “I’ll be back.” The appellant saw Chris and Tommy laughing and Loukas went over to them.

[27] According to the appellant, Tommy and Loukas then approached him and Tommy said, “Do you know that you were dancing with my buddy’s girlfriend?” The appellant said that Tommy was trying to come towards him, but Tony restrained him. He heard Tommy say, “He’s a nice guy but I’m not.” The appellant asked Tommy what his problem was, and then Tommy tried to reach for him and the appellant pushed his hands away. The appellant told Tony he wanted to leave, but then Jordan grabbed him by the throat with his left hand and pushed his back into the counter. He said that he thought he was going to die. Jordan hit him on the nose and his face went numb. The appellant said he took out his knife and slapped him two or three times, after which Jordan let him go.

[28] The appellant went on to testify at length about his escape, his flight to the United States, and his subsequent arrest.

C. Theories of the Case

(a) The Defence Theory

[29] The theory of the defence was that the appellant acted in self-defence in stabbing Jordan. According to the defence, it was clear that Albanians were not welcome in Kokkino, a Greek bar. Defence counsel described the racial animus of the Crown’s key witnesses towards Albanians in general, and towards the appellant in particular. According to the defence, the appellant was subjected to hostility from Loukas, Chris and Tommy. Finally, as the appellant was trying to leave, Jordan – a man two-and-a-half times his size – grabbed him by the neck and was squeezing the life out of him. In the words of defence counsel, the appellant,

did not have a Hollywood director to choreograph a well-timed punch to the midsection, a kick to the groin, or a karate chop to the neck. He thought he had no choice, when he took out the knife. Him or me. Self-defence.

[30] Defence counsel asked the jury to consider that the Crown witnesses’ initial statements to police indicated that Tommy and Jordan were the aggressors. Their skewed testimony at trial was attributable to talking to others, their racial beliefs, and the fact that their close friend was dead.

(b) The Crown’s Theory

[31] The Crown’s position was that the appellant had the intent for murder and was not acting in self-defence. The Crown contended that the appellant went into Kokkino armed with a knife and he began starting trouble shortly after he came in. He was the one who caused all of the problems with Loukas, Chris, Zoe and Tommy. And he was the aggressor just before the stabbing, having attacked Tommy. Then, when Jordan came to Tommy’s aid, he violently and deliberately plunged his knife into Jordan’s neck, in an area that was sure to cause death or cause serious bodily harm that could result in death.

[32] After stabbing Jordan, the appellant ran from the bar, evaded the police, and ultimately fled to the United States. He did not return to answer for his crime until he was apprehended three months later. The Crown submitted that these are not the actions of a man who had acted in self-defence.

D. The issues on appeal

[33] The appellant challenges the second-degree murder conviction on the following six grounds:

(1) the trial judge erred in failing to leave the defence of provocation to the jury;

(2) the trial judge erred in admitting evidence of the victim’s good character;

(3) the trial judge erred in failing to give a limiting instruction with respect to the evidence of the appellant’s bad character;

(4) the trial judge erred in failing to review the position of the defence and the evidence in support;

(5) the trial judge erred in failing to direct the jury that no inference could be drawn from the failure of the defence to call certain witnesses;

(6) the trial judge erred in charging the jury on self-defence.

[34] The appellant also appeals from his sentence.

E. Analysis

[35] We called upon the Crown only to respond to the issues of provocation and three complaints about the trial judge’s charge to the jury, namely: (4) the review of the defence position and supporting evidence; (5) the alleged failure to instruct on any inference in connection with the defence not calling certain witnesses; and (6) the instruction on self-defence.

Conviction Appeal

(1) Did the trial judge err in failing to leave the defence of provocation with the jury?

(a) Provocation under s. 232 of the Criminal Code

[36] The defence of provocation in s. 232 of the Criminal Code is a partial defence. More specifically, it operates as an excuse that has the effect of reducing murder to manslaughter when certain requirements are met: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 9; see also R. v. Mayuran, 2012 SCC 31.

[37] In Tran, Charron J. for the unanimous Supreme Court observed that decisions of that court have variously described the requirements of the defence of provocation in s. 232 as comprising either two, three or four elements: see R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37, at para. 4; R. v. Hill, 1986 CanLII 58 (SCC), [1986] 1 S.C.R. 313 at p. 324; and R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, at para. 10. Charron J. commented, at para. 11, that “[t]hese various formulations do not differ in substance.”

[38] Charron J. expressed the view, at para. 23, that “the requirements of s. 232 are most usefully described as comprising two elements, one objective and the other subjective.” She cited with approval the following passage from Cory J.’s majority judgment in Thibert, at para. 4:

First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control as the objective element. Second, the subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool.

[39] Charron J. went on to describe the objective and the subjective elements as each being “two-fold”. In her words, at paras. 25 and 36:

For the purpose of discussion, the objective element may be viewed as two-fold: (1) there must be a wrongful act or insult; and (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control.

The subjective element can also be usefully described as two-fold: (1) the accused must have acted in response to the provocation; and (2) on the sudden before there was time for his or her passion to cool.

(b) Counsel’s position on leaving provocation with the jury in this case

[40] In pre-charge submissions, Crown counsel took the position that while the evidence to support the statutory defence of provocation was minimal, there was sufficient evidence to justify an instruction on that defence. In contrast, defence counsel asked for what is known as a “rolled up” charge on the issue of the intent required for murder. That charge would instruct the jury to take into account the effect of the appellant’s consumption of alcohol, his anger based in part on the provocative acts directed at him while he was in the restaurant, and the possibility that the appellant had accidentally stabbed the victim in the neck. Defence counsel argued:

Essentially, all of those factors negate the specific intention to murder, which is why, in my submission, what’s termed in Justice Watt’s manual [Watt’s Manual of Criminal Jury Instructions, (Toronto: Carswell, 2005)] as the rolled-up charge is the appropriate one, where it’s essentially a group of factors all rolled up together, which negate the specific intention for murder and bring it down to manslaughter.

[41] The trial judge interjected: “So to cut to the chase, you think I should leave provocation with them.” Defence counsel responded:

I think that specifically you should leave provocation, rolled up with all of the other factors that have been brought into play in the evidence in this case, that it should all be put together – essentially saying that all of these factors – each individual factor would bring it from second degree down to manslaughter. But taking into account all of these factors, each one of these factors is in play in this case in a very real way; and since each individual one could bring it from second down to manslaughter, all of them together have to be considered.

(c) The trial judge’s charge

[42] The trial judge did not charge the jury on the elements of the defence of provocation as found in s. 232 of the Criminal Code. He instead provided a rolled-up charge as requested by defence counsel.

[43] More specifically, the trial judge instructed the jury to consider the evidence of the appellant’s alcohol consumption, along with the appellant’s evidence of the provocative behaviour that he experienced that night from Loukas, Chris, and Tommy, as well as his evidence that “he was trying to leave when Jordan Ormonde grabbed him by the throat.” He also told the jury not to consider the post-offence conduct evidence of the appellant’s flight to the United States on the issue of intent. The trial judge then gave the following instruction:

You should consider this evidence, and the extent to which you accept it, any of it, not just by itself on a particular issue to which it relates, but all together, along with any other evidence that might suggest that Mr. Krasniqi acted instinctively, in the sudden excitement of the moment, without thinking about the consequences of what he did, and without either state of mind necessary to make the unlawful killing of Mr. Ormonde murder.

You must consider the effect of all this evidence, the sum total of it, along with any other evidence that you accept, that seems or tends to show Mr. Krasniqi’s state of mind, when you are deciding whether Crown counsel has proven beyond a reasonable doubt that Mr. Krasniqi’s unlawful killing of Mr. Ormonde was murder.

If you are not satisfied beyond a reasonable doubt that Mr. Krasniqi had either state of mind required to make his unlawful killing of Mr. Ormonde murder, you must find Mr. Krasniqi not guilty of second degree murder, but guilty of manslaughter, and your deliberations are over.

(d) Application to introduce fresh evidence on appeal

[44] The appellant applied to introduce trial counsel’s affidavit as fresh evidence on the appeal. In the affidavit, counsel acknowledged that he did not appreciate the difference between provocation, as defined in s. 232, which creates a statutory partial defence to murder, and provocation in the broader sense, meaning conduct or words that may cause the accused to have been angered and to have acted without intending the consequences of that action. The statutory defence operates where the accused has the intention for murder and would otherwise be guilty of murder. Provocation in the latter sense is an evidentiary factor relevant to whether the Crown has proved the requisite intent.

[45] In the course of oral argument, the court declined to admit counsel’s affidavit. The appellant does not allege ineffective assistance of counsel. The record at trial, including the pre-charge submissions of defence counsel, speaks for itself. In our view, that record demonstrates a misapprehension by defence counsel as to the difference between provocation under s. 232 and provocation relating to intent. That confusion forecloses the Crown from relying on the defence position at trial to support the contention that there was no air of reality to the statutory defence of provocation. Counsel’s confusion, however, goes no further than that. The issue remains whether on the evidence the trial judge ought to have left the defence of provocation with the jury. This brings me to the fundamental question on this appeal – was there an air of reality to the defence of provocation?

(e) Was there an air of reality to the defence of provocation?

[46] If there was an air of reality to the defence of provocation, then in addition to providing the rolled-up charge on the mens rea for murder, the trial judge ought to have instructed the jury to consider if the Crown had disproved the elements of the defence of provocation. Charron J. in Tran, at paras. 40-41, described the analysis that a trial judge must undertake in deciding whether the defence of provocation should be left with the jury:

The term “air of reality” refers to the inquiry into whether there is an evidential foundation for a defence….

In a jury trial, the judge is the gatekeeper and judge of the law and must therefore put the defence to the jury only where there is evidence upon which a “reasonable jury acting judicially” could find that the defence succeeds (Faid, at p. 278) [R. v. Faid, 1983 CanLII 136 (SCC), [1983] 1 S.C.R. 265]. For the defence to succeed, the jury must have a reasonable doubt about whether each of the elements of provocation was present. This necessarily requires that there be a sufficient evidential basis in respect of each component of the defence before it is left to the jury: the evidence must be reasonably capable of supporting the inferences necessary to make out the defence before there is an air of reality to the defence (Fontaine, at para. 56 [R. v. Fontaine, 2004 SCC 27, 1 S.C.R. 702]; R. v. Reddick, 1991 CanLII 106 (SCC), [1991] 1 S.C.R. 1086, at p. 1088, citing Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120, at p. 133).

[47] Thus, for the trial judge to have erred in not leaving the statutory defence of provocation with the jury, there must be a sufficient evidential basis in respect of each component of the defence, in the sense that the evidence is reasonably capable of supporting the inferences necessary to make out the defence.

[48] The appellant submits that this case is a “textbook example of provocation”. The following argument is found in the factum:

After repeated ethnic insults the appellant was assaulted by the deceased and reacted on the sudden. Although the appellant testified that he acted in self defence and did not intend to kill the deceased, he also testified that he “lost control”. In his statement to the U.S. Marshals the appellant described an altercation in a bar and that he “wasn’t going to take that”. Indeed, it was the position of the prosecution that the appellant was the aggressor and had acted in a “burst of anger”. The evidence at trial easily yields a credible narrative that the appellant committed murder while acting in the heat of passion caused by sudden provocation. The failure to leave the defence with the jury requires that a new trial be ordered.

[49] On appeal, the Crown accepts that there was some evidence, albeit weak, that was capable of supporting the inferences needed to make out the objective element of the defence of provocation. The wrongful act was Jordan’s alleged act of choking the appellant. If the jury accepted that this act occurred, the jury could potentially have found that there was an act that was sufficient to deprive an ordinary person of his or her power of self-control.

[50] However, the Crown contends that there is no evidence that is capable of satisfying the subjective element of the defence, namely, that the accused must have acted in response to the provocation on the sudden before there was time for his passion to cool.

[51] Charron J. explained in Tran, at para. 37, that “[t]he inquiry into whether the accused was in fact acting in response to the provocation focuses on the accused’s subjective perceptions of the circumstances, including what the accused believed, intended or knew. In other words, the accused must have killed because he was provoked and not because the provocation existed” (citations omitted). The suddenness requirement serves to distinguish provocation from an act of revenge. The wrongful act or insult must “strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame”: Tran, at para. 38, citing R. v. Tripodi, 1955 CanLII 10 (SCC), [1955] S.C.R. 438, at p. 443.

[52] In applying the air of reality test, it is necessary to consider the totality of the evidence, including the appellant’s evidence. The appellant testified at length about the events at Kokkino, including his reaction to being grabbed by Jordan. In chief, he described the events immediately before the stabbing as follows:

He grabbed me and lift me against what I came here to this side. And I hurt my back. When I woke up in the morning, I hurt my back here, and nose bleeding.

Q. How long was he holding you there?

A. It seems to me I’m going to die – maybe five seconds, ten seconds, but it hurt. Choke.

Q. Did he do anything else while he was holding you?

A. He couldn’t do nothing else, because he slapped me. I had no control. He hits me on the nose and the whole… like when you go pull out a tooth.

Q. Your face was numb.

A. Numb, yeah. Sorry.

[53] Defence counsel asked him why he pulled out the knife and he replied:

Because that’s what came to my mind, that minute. What are you going to do, in front of a guy double-and-a-half your size, grabbing you like… a kid.

The appellant later gave the following evidence in chief:

Q. Did you mean to kill Mr. Ormonde?

A. No.

Q. Why did you take out the knife?

A. That’s all I can think, in that moment, saving, I guess, my life.

Q. Say that again?

A. Saving, I guess, my life. In that moment I thought, “I’m dying. Choked.” … [L]ike grabbing my kid eight years old and lift me up, what am I going to do? I couldn’t do nothing. Double-and-a-half or more the size of mine.

Q. You thought it was either him or you.

A. I was. In that point, that was me. If it was not that knife, maybe, cutting, it was me for sure.

[54] The appellant’s evidence in chief, read in its entirety, contains no indication whatsoever that he was acting out of anger, or with his passions inflamed, or as a result of a loss of self-control, in response to the alleged wrongful act of the victim in choking him. Rather his evidence was solely to the effect that his response in using the knife was motivated by the aim of self-preservation.

[55] In cross-examination, the Crown put it to the appellant that he “started getting very angry and lost control, and you started yelling at Tommy and Jordan.” The appellant did not agree with Crown counsel’s suggestion. The Crown then asked about the incident with Jordan, which the appellant described as follows:

A. …And I said to Sam, “Let’s go. Fuck those guys.”…

As I try to come in here… he [Jordan] goes, “No, you’re not going nowhere,” he said – grabbed me, lift me on the bar, pushed me on the bar, slapped me on the face. I lost control.

Q. Okay. And now, can you show me exactly how you stabbed Jordan?

A. He grabbed me here, Miss. Maybe it’s one, two steps away, grabbed me and lift me up. I stood in this side. Slapped me on the face.

I lost control. Grabbed the knife from here. That’s all it came, it seems like two, three minutes holding me. Like holding a person two, three minutes, they will die. To me it seems like that.

Grab the knife, and I was trying to reach him. But he was bigger than me, I couldn’t reach him. And I was facing this side on him, and I slash maybe – to me seems like I’m dying, in that moment. And I got him.

[56] The appellant’s statements that “he lost control” must be read in the context of the totality of his evidence. The appellant did not suggest that he was overwhelmed by anger when the victim held him by his neck. Rather, his evidence was that, in stabbing the victim, he was “[d]oing something to [make the victim] let me go. That’s why he got the cut.” He further testified in cross-examination: “If he saw maybe the knife, he will let me go or something.” And he explained: “[T]o stab him on the neck, it was never my intention… I was trying to release myself.” A complete review of the appellant’s testimony demonstrates that the appellant’s references to having “lost control” refer to his feeling that he could not escape from the victim’s grasp unless he stabbed him and not to a loss of control in the emotional sense.

[57] As this court held in R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109, at para. 82: “[I]t cannot be denied that an accused’s own evidence is an important consideration in the air of reality inquiry.” However, as this court held in R. v. Gill, 2009 ONCA 124, at paras. 18-21, there may be an evidentiary basis upon which to leave a defence with the jury even where an accused’s own testimony disavows the defence of provocation.

[58] In this case, there was no suggestion in the evidence of the Crown witnesses that the appellant was acting out of a sudden rage in response to having been restrained by Jordan, nor that he slashed Jordan before he had time to regain control of himself. Rather, the evidence from these witnesses indicated that the appellant was behaving aggressively before Jordan intervened and that Jordan was restraining the appellant from a physical confrontation with Tommy.

[59] Thus, in my view, the trial judge did not err in refusing to leave the statutory defence of provocation with the jury. The appellant’s evidence is consistent with the defence of self-defence, but is not consistent with the defence of provocation. The observations of Dickson J. in R. v. Faid, 1983 CanLII 136 (SCC), [1983] 1 S.C.R. 265, at pp. 278-279, apply with equal force to the present case:

Was there any evidence of passion or that he [the accused] “acted upon” the provocation on the sudden and before there was time for his passion to cool? We have only his evidence on the point and nowhere in that evidence does one find any suggestion that as a result of the blows or other conduct of Wilson [the victim] he was enraged, or that his passions were inflamed, or that he killed in heat of blood. There was no evidence of “a sudden temporary loss of control rendering the accused so subject to passion as to make him or her for the moment not master of his mind” which is, as Devlin J. said in R. v. Duffy, [1949] 1 All E.R. 932, of the essence of provocation. The defence throughout, the only defence, was self-defence. Faid [the accused], on his version, was using measured force to resist the force being used against him.

[60] As there was no evidence capable of giving an air of reality to the defence of provocation, this ground of appeal fails.

(2) Did the trial judge err in admitting evidence of the victim’s good character?

[61] The trial judge ruled that the evidence of Jordan’s peaceful disposition was admissible as part of the Crown’s case. He observed that this evidence was relevant to the issue whether the appellant acted in self-defence, and that the evidence was of minimal prejudicial effect because it would emanate from witnesses who were otherwise testifying and whose sympathy for the victim, if such sympathy existed, would be obvious from their testimony in any event.

[62] The appellant submits that the trial judge erred in admitting this evidence because it was of minimal probative value and of considerable prejudicial effect. He says that the prejudicial effect of the evidence was considerable given the evidence before the jury of his bad character in the form of his prior criminal record. Alternatively, the appellant argues that the trial judge erred in failing to instruct the jury on the limited use of the evidence.

[63] The issue of Jordan’s general disposition for violence was relevant to the issues raised by the defence of self-defence, because the jury had to determine if Jordan had acted in a way that caused the appellant to fear that his life was in danger or that he would suffer grievous bodily harm from Jordan. I agree with the trial judge’s view that the prejudicial effect of the evidence was minimal. In light of the probative value of this evidence and its minimal prejudicial effect, I see no error in the trial judge’s decision to admit this evidence.

[64] As for the adequacy of the trial judge’s charge to the jury on the use they could make of the evidence of Jordan’s good character, the trial judge made only one brief reference to the disposition evidence. He did not draw any significant attention to the good character evidence in his charge. By only including a very brief reference to this evidence, the trial judge ensured that the jury would not place unwarranted emphasis on this evidence.

[65] Defence counsel did not object to the trial judge’s treatment of the evidence of Jordan’s good character. Moreover, the jury would have been well aware of the defence position that, although there was evidence of Jordan’s usual peaceful disposition, Jordan was under the influence of drugs and alcohol that night, which may have altered his behaviour. As defence counsel put it to the jury in closing:

Given the combination of alcohol and drugs in his system, Jordan was not his usual teddy bear self that night. His inhibitions were lowered. The teddy bear grew claws, and he became violent.

[66] There is no basis for finding that the appellant was prejudiced by the trial judge’s failure to instruct the jury on the limited use of the evidence of the deceased’s good character. I would not give effect to this ground of appeal.

(3) Did the trial judge err in failing to give a limiting instruction with respect to the evidence of the appellant’s bad character?

[67] Here the appellant first objects to the trial judge’s handling of evidence consisting of false identity documents found at the apartment where the appellant was arrested. He argues that the trial judge erred in not cautioning the jury about the improper use of this evidence. He contends that this evidence may have been used by the jury as confirmation of the stereotype that Albanians are criminals.

[68] It was the appellant who raised the notion at the trial that the Greek community holds a stereotype of Albanian people as criminals. Furthermore, the Crown did not lead any evidence to suggest that the appellant’s possession of falsified documents indicated that he was tied to organized crime.

[69] There was no prejudice to the appellant from the absence of an instruction telling the jury that they should not use this evidence to infer that the appellant was involved with organized crime. The instruction that the appellant now seeks was specifically resisted by defence counsel on the basis that it would “put the prohibited seeds [of other criminal conduct] in the minds of the jurors”.

[70] The trial judge reminded the jurors that the appellant testified that it is not uncommon to be able to get false documents. Further, he instructed them to consider the evidence only in assessing whether the appellant’s post-offence conduct was consistent with the defence of self-defence. These aspects of the charge mitigated any prejudicial effect of the evidence and obviated the need for the instruction that the appellant now seeks on appeal.

[71] The appellant next submits that the trial judge erred in instructing the jury that the fact that he was carrying a knife when he entered Kokkino was relevant to the issue of intent. He argues that the instruction given invited the jury to draw an inference of intent from bad character. I disagree.

[72] The evidence that the appellant was carrying a knife was critical to the narrative of events and the accompanying prejudice was of such a minimal nature that no limiting instruction was required. The act of carrying a knife in the circumstances of this case is not such that it would encourage a jury to engage in propensity reasoning and to conclude that, because the appellant was carrying a knife, he was the sort of person likely to commit the offence. I would dismiss this ground of appeal.

(4) Did the trial judge err in failing to review the position of the defence and the evidence in support?

[73] The appellant contends that the trial judge erred in failing to charge the jury on the position of the defence and the evidence relied on in support. This submission is not borne out by a review of the charge.

[74] The trial judge first summarized the evidence of the appellant’s out-of-court statements to the U.S. marshals who arrested him. He instructed the jury to consider these statements along with the rest of the evidence in deciding whether the jurors have a reasonable doubt:

[Y]ou must consider all the remarks that might help Mr. Krasniqi, even if you cannot decide whether he said it or not.

If you decide that he made a remark that may help him in his defence, or you can’t decide whether he made it, you will consider that statement along with the rest of the evidence in deciding whether you have a reasonable doubt.

[75] The trial judge next described the evidence of post-offence conduct and advised the jury that this evidence may, or may not, help them decide whether the appellant was acting in self-defence. The trial judge described at some length the evidence of the appellant’s conduct immediately after the stabbing, and while he was in New York. Included in this review was a lengthy discussion of the appellant’s testimony about his post-offence conduct, including his explanations for acting in the way he did and his evidence indicating that he wanted to return to Toronto before the U.S. marshals apprehended him. Included in this review was the following instruction:

If you find that Mr. Krasniqi actually did and said what he is alleged to have done after the stabbing, you must be careful not to immediately conclude that he did or said so because he was conscious of having no justification for the stabbing of Jordan Ormonde.

To decide the reason why Mr. Krasniqi did and said what he did afterwards, you should consider all the evidence. Of particular importance is any evidence that offers an explanation.

For example, it was suggested that he ran away from the restaurant because he was being chased. He said he didn’t surrender to police because he didn’t see the police who overtook the chase. He said he disposed of the knife because he was in shock. He said he removed the bloody shirt, which was covered in blood, to wipe his face which was covered in blood because his nose was bleeding. He said he fled the country because he thought everyone would lie, and he would go to prison for life.

He said he intended to return. He said he knew that he could not find his witnesses. He said he used false documents to get into the United States because he was afraid to go to jail.

Before you can use this evidence about what Mr. Krasniqi did or said after the stabbing to help you decide that Mr. Krasniqi was not acting in self-defence, you must reject any innocent explanation for his flight and for his possession of false documents.

[76] The trial judge then informed the jury of the essential elements of the offence of second degree murder and the elements of the defence of self-defence under s. 34(2) of the Criminal Code. He went on to review the evidence of the witnesses concerning the events leading up to the stabbing. He also reviewed in detail the appellant’s evidence giving his version of the events at Kokkino, including his evidence that:

[T]he big guy, Jordan Ormonde, grabbed him by the throat, slapped him, and pinned him against the bar. He couldn’t breathe. He didn’t know what to do. He took the knife out of his pocket and slashed a couple of times. Blood came all over. Jordan let him go. Sam started running, and he started running.

He described the interaction with Tommy Kalogeropoulos prior to the stabbing. He said Tommy came closer to Tony and reached out his hand, and he pushed Tommy’s hand away. As he tried to leave, Jordan was there and grabbed his throat with his left hand, and pushed him back to the corner of the counter, holding him for about five to ten second.

Jordan’s hand came around most of his neck. He said it hurt. He said his face was slapped so hard that it was numb. He hit back with his right hand. He took the knife and slashed two or three times. He was shocked when the blood came all over him.

[77] Thus, the trial judge clearly referred to the position of the defence and the evidence relied on in support of that position.

[78] The appellant next argues that the trial judge ignored significant evidence that his counsel adduced in cross-examining the Crown witnesses, particularly evidence which demonstrated the animosity they felt towards Albanians. He also argues that the trial judge’s charge minimized various allegedly prior inconsistent statements of some of the Crown witnesses.

[79] I do not accept this submission. It is not necessary for the trial judge to mention every nuance of the evidence as it came out in cross-examination. As the majority of the Supreme Court of Canada explained in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 56:

[I]t is not the case that the trial judges must undertake an exhaustive review of the evidence. Such a review may in some cases serve to confuse a jury as to the central issue. Brevity in the jury charge is desired.

[80] The majority in Daley also pointed out, at para. 58, that the trial judge’s instruction must be reviewed in the context of the addresses of counsel as they may fill gaps left in the charge. And the majority noted that the failure of defence counsel to object about this aspect of the charge is a factor to consider on appeal.

[81] In the present case, the trial judge’s charge fairly and adequately described the central evidence presented at the trial. Virtually all of the extracts from cross-examination that the appellant says the trial judge should have mentioned were referred to by defence counsel in his closing address. In defence counsel’s objections to the charge, his only concern about the sufficiency of the trial judge’s review of the evidence was in relation to the evidence of Loukas Pappas. Defence counsel expressed concern that the trial judge had only summarized Loukas’ evidence in chief, without touching on some of the issues raised in cross-examination, particularly in relation to what Loukas had said about pushing the appellant. The trial judge did not recharge the jury on the nature of Loukas’ evidence regarding the push.

[82] This narrow concern, which defence counsel indicated was of least importance on his list of concerns, is clearly not sufficient to warrant appellate intervention. In closing, defence counsel recounted to the jury the thrust of Loukas’ evidence regarding the push involving the appellant.

[83] I would therefore dismiss this ground of appeal.

(5) Did the trial judge err in failing to direct the jury that no inference could be drawn from the failure of the defence to call certain witnesses?

[84] The appellant argues that the trial judge erred in failing to instruct the jury that no adverse inference could be drawn from the failure of the defence to call Sam or Tony as witnesses. Such an instruction is said to have been required because of the nature of the Crown’s cross-examination and because of the Crown’s position in closing.

[85] In cross-examining the appellant, the Crown put the following questions to the appellant:

Q. I’m going to suggest, your friend actually had to step in between [he and Tommy] to try and control you.

A. The friend that was already there, when he came, he saw him coming, because my friend, if you can change the place, I can show you exactly where it is. Every day I’m thinking on that.

Q. That’s a friend who is not here?

A. Yes.

Q. That’s the friend who is not here.

A. Yeah.

Q. And I’m going to suggest to you he’s not here because you were the aggressor that night, and he knows what you did, and he’s not going to come to Court and say that you were just having a nice time in that bar all night.

A. I don’t agree with you.

Q. All right. ...

[86] In the Crown’s closing address to the jury, counsel made the following remark:

Mr. Krasniqi went, armed with a fishing knife, to a bar, with people he claims he can’t find. But I ask you to find they aren’t coming forward for obvious reasons.

[87] The appellant argues that there was no foundation for the Crown’s comment. The police were unable to locate either witness. The cross-examination and closing address of Crown counsel suggested that the appellant had an obligation to call these witnesses and that the absence of such witnesses at the trial supported an inference of guilt. The trial judge’s failure to correct the Crown’s position is alleged to constitute reversible error.

[88] Prior to the impugned exchange in cross-examination referred to above, Crown counsel asked the appellant if he knew where Sam and Tony were and the appellant replied: “No, Miss. I tried to find them, because I’m in protect custody, and I don’t see nobody here.” Crown counsel then asked the appellant about how he knew Sam, and he explained that he had worked with him on a job. He was asked if he tried to find him after the incident, and he indicated that he could never find him. He was also asked about Tony and he testified that he had only met him that night. The following exchange then occurred:

Q. All right. Now given what you’ve told us about your side of the story, you’d agree with me that it would be helpful to learn what they have to say about what happened that night.

A. It would be helpful, more than helpful for me at least, to save my life and case.

Q. And you had a terrible night, and these friends could come and talk about this terrible night.

A. Yes, ma’am,

Q. They could. All right. But you heard Detective Banks, these two guys never come forward.

A. Not to me, too.

Q. And you’d agree with me that after that night,... there was a lot of publicity on TV about this case.

A. Yes, Miss.

Q. So it was a possibility that those two men could have seen the TV...?

A. Yes. That’s where I saw it... myself.

Q. But you don’t know where they are; and they are not here today.

A. No, Miss.

[89] While it would have been better had Crown counsel not made the impugned observations in closing, the trial judge’s repeated and powerful instruction on the burden of proof prevented the jury from using the failure to call witnesses to draw any adverse inferences against the appellant. His instructions would have made it clear to the jury that there was no burden on the appellant to adduce them as witnesses. The trial judge told the jury numerous times about the burden of proof, including the following explanation:

Mr. Krasniqi does not have to present evidence or prove anything in this case; in particular, he does not have to prove that he is innocent. From start to finish, it is the Crown who must prove guilt beyond a reasonable doubt; it is not Mr. Krasniqi who must prove his innocence.

[90] The trial judge’s charge to the jury also made it clear to them that they should not speculate or make up theories in the absence of supporting evidence:

You make your decision about the facts from the evidence given during the trial. There is not going to be any more evidence, and there is nothing else to consider but the evidence that you heard before, in this trial.

You are entitled to come to common sense conclusions, based on the evidence that you decide to accept. Do not speculate about what the evidence might have been, or permit, or guess, or make up theories, without evidence to support it.

[91] The Crown made the comment about the absence of these witnesses in passing in the context of a detailed closing address. The trial judge instructed the jury not to speculate about what the evidence might have been and reminded them that there was no obligation on the appellant to prove anything. Finally, I note that defence counsel did not raise any objection on this point.

[92] I would therefore dismiss this ground of appeal.

(6) Did the trial judge err in charging the jury on self-defence?

[93] The appellant submits that the trial judge made two errors in his instruction on self-defence.

[94] First, the appellant contends that the trial judge failed to instruct the jury that he was not required to carefully measure the force used in responding to Jordan’s assault. Such an instruction was required because the Crown cross-examined the appellant about the alternatives that were open to him other than using his knife.

[95] The Crown acknowledges that the trial judge erred in failing to provide the specific instruction of what is known as the Baxter instruction. In R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.), Martin J.A. said, at p. 111:

[I]n deciding whether the force used by the accused was more than was necessary in self-defence under both s. 34(1) and (2) the jury must bear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety, the exact measure of defensive action…[Citations omitted.].

[96] While it is an error of law not to give a Baxter instruction where the accused is relying on either s. 34(1) or s. 34(2) of the Criminal Code, it is the message in the Baxter instruction which must be brought home to the jury, not specific language. In other words, it is the failure to instruct in the terms of Baxter that will be an error in law. The most prudent way, or course, to instruct in this regard is to track the language in Baxter. However, when that does not occur, one then looks to the charge to see whether the essence of the message in the extract from Baxter is found in the jury instructions.

[97] In this case, the absence of a specific Baxter instruction was mitigated by other aspects of the charge. The Baxter message, in my view, comes through in the trial judge’s instructions.

[98] In this case, the self-defence instruction under s. 34(2) was agreed upon by both counsel at the pre-charge conference. The trial judge’s review of the appellant’s evidence, set out above at para. 76, would have made it clear to the jury that they could accept his reaction as being a legitimate response for the purposes of self-defence. The trial judge did not suggest to the jury that they should consider if it was possible for the appellant to save himself otherwise than by using the knife.

[99] In addition, the trial judge instructed the jury on how it should approach the issue whether the appellant honestly and reasonably believed that he could not save himself from being killed or seriously injured other than by killing or seriously injuring Jordan. He told them that the issue was not whether the appellant was actually in danger of being killed or seriously injured, but rather whether he honestly and reasonably feared he was in that kind of danger. The overall language of the instruction on self-defence would have conveyed to the jury that the appellant was not required to precisely weigh the exact measure of defensive action that was required.

[100] Second, the appellant submits that the trial judge erred in failing to explicitly instruct the jury that even if they found the appellant was the aggressor that night, self-defence was still available. This instruction is said to have been necessary because the Crown in closing raised the question of who the real aggressor was. The appellant contends that the trial judge’s instruction that it did not matter whether the appellant provoked the assault was insufficient in the circumstances.

[101] I do not agree. The trial judge made it clear to the jury that the appellant could rely on the defence under s. 34(2) whether or not the appellant was the initial aggressor, advising the jury that “it does not matter whether Mr. Krasniqi provoked the assault.”

[102] I would dismiss this ground of appeal.

Sentence Appeal

[103] At the time of the murder, the appellant was prohibited from possessing a weapon by a peace bond and a judicial interim release order.

[104] The prosecution sought a period of parole ineligibility in the range of 16 to 18 years. The defence asked that parole ineligibility be set in the range of 10 to 12 years. Five jurors recommended 15 years parole ineligibility, while three jurors recommended 10 years. Four jurors made no recommendation. The trial judge imposed a minimum period of parole ineligibility of 14 years.

[105] The appellant asks this court to reduce the period of parole ineligibility given his background and the circumstances of provocation. The appellant does not contend that the trial judge committed any error in principle or misapprehended the evidence in setting the period of parole ineligibility at 14 years.

[106] This court said in R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, at para. 179, that “[i]t is hard, absent some error in principle or misapprehension of material evidence, to justify appellate intervention to adjust a mandatory period of parole ineligibility downward by two or three years.” I fail to see any basis for reducing the period of parole ineligibility imposed by the trial judge in this case.

F. conclusion and disposition

[107] I would dismiss the appeal from conviction. I would grant leave to appeal sentence and dismiss the sentence appeal.

Released: “AUG 29 2012”

“DD” “H.S. LaForme J.A.”

“I agree Doherty J.A.”

“I agree Paul Rouleau J.A.”

[^1]: The appellant’s statements to the U.S. Marshals were ruled voluntary during a pre-trial motion. No objection is taken to this ruling on this appeal.