COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stewart, 2014 ONCA 70

DATE: 20140127

DOCKET: C52446

MacPherson, MacFarland and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ajine Stewart

Appellant

John M. Rosen and Paul Alexander, for the appellant

Andreea Baiasu, for the respondent

Heard: September 9, 2013

On appeal from the conviction entered on October 8, 2008 by Justice J. David McCombs of the Superior Court of Justice, sitting with a jury.

Epstein J.A.:

OVERVIEW

[1] The appellant, Ajine Stewart, and the deceased, Dwayne Taylor, were “Crips” gang members and drug dealers who had conducted business with each other. They met unexpectedly early in the morning on July 31, 2005, in Dundas Square, during Toronto’s annual Caribana festival. An argument ensued involving drug dealing and money. The appellant pulled out his handgun and fired two shots. The second shot killed Mr. Taylor. The appellant was arrested at the scene and charged with second-degree murder. He appeals his conviction of that offence.

[2] Although at trial the appellant raised provocation and submits on appeal that the trial judge erred in refusing to put that partial defence to the jury, the appellant’s primary position, at trial and on appeal, rests on the defence of self-defence. This defence depended heavily on the jury’s believing or having a reasonable doubt that Mr. Taylor aimed a gun at the appellant just before the moment when the appellant shot and killed Mr. Taylor.

[3] In this appeal, the appellant submits that the trial judge erred in three material respects: 1) he misdirected the jury on the law of self-defence; 2) he ruled against leaving provocation to the jury when the defence had evidentiary support; and 3) he mishandled the evidence in his instructions to the jury by misstating portions and by failing to adequately recount pertinent evidence for the defence.

[4] For the reasons that follow, I would dismiss the appeal. I agree with the trial judge that, on this record, the only defence available to the appellant was self-defence. I find no reversible error in the instructions to the jury either with respect to the law of self-defence or in the manner in which the trial judge dealt with the evidence relevant to that issue.

SUMMARY OF THE FACTS

The Homicide

[5] Portions of the circumstances surrounding the homicide were captured on a security videotape. However, the images did not clearly show the details of various aspects of what took place, most notably, what happened immediately prior to the shooting.

[6] What is clear from the videotape is that the appellant fired two shots from a handgun. The first struck a sign and the second struck Mr. Taylor. The videotape also shows Mr. Taylor’s rising to his feet after being shot and running to the north side of Dundas Street, where he collapsed on the sidewalk.

[7] Mr. Taylor was taken by ambulance to St. Michael’s Hospital, where he was pronounced dead. The cause of death was a single gunshot wound to the chest.

[8] The appellant attempted to flee the scene but was apprehended by the police and immediately arrested.

The Appellant’s Evidence

[9] The appellant testified that on the evening in question he had been drinking and decided to go to Caribana, alone, to meet women. Given his involvement with gangs and the drug trade, the appellant was constantly wary of being attacked. He therefore armed himself with a loaded .38 calibre Smith and Wesson handgun.

[10] While at the Caribana festivities in Dundas Square, he unexpectedly ran into Mr. Taylor. As drug dealers and members of the Crips gang, both were heavily involved in criminal activities, including the threatening and intimidating behaviour associated with that lifestyle.

[11] In the course of the discussion between the two men, Mr. Taylor accused the appellant of owing him money from some drug transactions. The appellant denied the accusation. Mr. Taylor said that the appellant was “dissing” (i.e. disrespecting) him. According to the appellant, in an effort to prevent the situation from further escalating, he asked Mr. Taylor if they could speak alone. Mr. Taylor refused, at which point a number of Mr. Taylor’s associates, who the appellant believed were also gang members, surrounded him.

[12] This takes me to the aspect of the appellant’s testimony critical to the appellant’s defence of self-defence, namely, his account of what took place immediately prior to the shooting.

[13] The appellant testified that when he remained steadfast that he did not owe Mr. Taylor any money, Mr. Taylor threatened to kill him and reached as if to go for a gun. In response, the appellant pushed Mr. Taylor to knock him off balance. Mr. Taylor dropped into a crouch and pointed a gun at the appellant. The appellant drew his gun and fired twice, the second shot killing Mr. Taylor.

[14] The appellant said that he drew his gun only when Mr. Taylor reached for his. He testified that he had no choice but to shoot Mr. Taylor. Gang culture foreclosed any other option because if he attempted to defend himself by fleeing or calling for help, violent retaliation from Mr. Taylor or his associates was sure to follow.

[15] Finally, the appellant testified that while he was not certain, he thought Mr. Taylor fired his gun at him.

Mr. Taylor’s Character

[16] The trial judge permitted the defence to lead evidence of Mr. Taylor’s propensity for violence based on his prior criminal behaviour. This evidence included Mr. Taylor’s arming himself with a loaded shotgun during an argument about a cassette tape, his holding the arm of a police officer through the window of his car and dragging the officer as he accelerated and his bolting from a courthouse when cocaine was discovered in his pocket.

THE POSITIONS OF THE PARTIES AT TRIAL

[17] As previously indicated, the foundation of the self-defence argument was that Mr. Taylor was armed with a gun and was preparing to fire it at the appellant when the appellant shot him. It is clear from the respective positions of the parties at trial that Mr. Taylor’s possession of a gun during the confrontation was an important factual issue. If Mr. Taylor was not armed, the appellant's conviction was almost inevitable.

[18] In support of his position that Mr. Taylor was armed, the appellant relied on his own testimony as well as that of P.C. Kummer, an officer who was in the vicinity of the shooting who testified that she heard four gunshots.

[19] In support of the prosecution’s position that Mr. Taylor was not armed, Crown counsel relied primarily on the absence of any reliable evidence to the contrary. The appellant’s evidence that Mr. Taylor was armed and may have actually fired his gun was undermined by two important facts. No gun other than the appellant’s was found at the scene. The only shell casings recovered belonged to the appellant’s gun.

[20] The Crown also argued that Mr. Taylor was a violent person, familiar with the use of weapons. The jury was entitled to use Mr. Taylor’s failure to use a gun in the confrontation to support the conclusion that he did not have a weapon.

ISSUES

[21] The appellant submits that the trial judge erred:

(1) in his instructions to the jury on self-defence;

(2) in refusing to put the defence of provocation to the jury; and

(3) in the manner in which he dealt with the evidence in his instructions. Specifically, he misstated the evidence and failed to recount pertinent evidence favourable to the defence.

ANALYSIS

(1) Did the trial judge err in his instructions to the jury on self-defence?

[22] The trial, which occurred in 2008, was conducted under the old self-defence provisions in s. 34(2) of the Criminal Code. In R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109, Doherty J.A. succinctly summarized the self-defence provisions in s. 34(2) as they apply to a murder case. He identified 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 reasonably apprehend a risk of death or grievous bodily harm when he inflicts the fatal injury. Third, at that point in time, the accused must reasonably believe that he cannot otherwise protect himself from death or grievous bodily harm: Pilon, at para. 62; 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; and R. v. Reilly, 1984 CanLII 83 (SCC), [1984] 2 S.C.R. 396, at pp. 404-405.

[23] Justice Doherty held that in deciding whether an accused's apprehension of death or grievous bodily harm and his belief that he could not otherwise save himself were reasonable, the jury must consider the relevant circumstances as perceived by the accused. The jury must then test that perception against the community standard of reasonableness: Pilon, at para. 74; and Reilly, at pp. 404-405.

[24] While each element has a subjective and objective component, the focus is on the accused’s state of mind, a necessarily subjective inquiry: R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674, at para. 13.

[25] Against the background of these applicable legal principles, the appellant submits that in the circumstances of this case, the trial judge erred in setting out the elements of self-defence in three ways:

(a) On the first branch of the test, he wrongly stated that self-defence could only apply if Mr. Taylor actually assaulted the appellant;

(b) On the third branch of the test, he wrongly stated that the appellant could not rely on self-defence if he had the option to retreat earlier in the confrontation, regardless of whether the appellant still had that option at the time of the shooting; and

(c) He misdirected the jury by importing a proportionality requirement into s. 34(2) of the Criminal Code.

(a) The First Branch of Self-defence

[26] The appellant submits that the evidence about what happened immediately before he shot Mr. Taylor left it open to the jury to find (1) that Mr. Taylor was armed but that the gun was not found because it was taken away from the scene before the police could have discovered it; or (2) that Mr. Taylor was not armed, but given Mr. Taylor’s actions together with his criminal antecedents, of which the appellant was aware, the appellant reasonably believed that Mr. Taylor was armed and about to shoot him.

[27] The appellant contends that the trial judge improperly narrowed his s. 34(2) defence by instructing the jury that for self-defence to be available, they needed to accept or have a reasonable doubt that Mr. Taylor pointed a gun at the appellant. He states that the trial judge should have also instructed the jury that if they concluded that Mr. Taylor was unarmed, self-defence was nonetheless available if the appellant reasonably held the honest but mistaken belief that Mr. Taylor was assaulting him.

[28] Specifically, the appellant argues that the jury ought to have been told to consider the evidence about his knowledge of Mr. Taylor’s criminal antecedents and violent character. It was in this light that the appellant experienced the escalation of the confrontation, heard Mr. Taylor’s death threat and saw him make a movement toward his waist area. The appellant submits that the jury should have been instructed that they were entitled to use this evidence to consider whether, even if they found that Mr. Taylor was unarmed, the appellant acted in self-defence based on his perception that he was in sufficiently grave danger to justify his shooting and killing Mr. Taylor.

[29] In support of his argument that the trial judge improperly narrowed this defence, the appellant points to the following portions of the jury charge:

[I]f you decide that you are satisfied beyond a reasonable doubt that Mr. Taylor did not threaten him with death, reach for his waist band, pull out a gun and point it at Mr. Stewart, then self-defence won’t help [the appellant]….

I want to stress to you that if you conclude that you are satisfied beyond a reasonable doubt that Mr. Taylor did not go for, and produce a gun, then the defence of lawful self-defence is not available to Mr. Stewart, and you will conclude that he is guilty of unlawful homicide.

[30] The appellant does acknowledge that, later in the charge when the trial judge reviewed the law, he correctly stated that self-defence is also available in circumstances in which the accused holds an honest but mistaken belief in an unlawful assault. However, he argues that the subsequent instruction on this critical issue was inadequate as the trial judge did not indicate that he was giving a correcting instruction. Furthermore, he states that the prior erroneous instructions were particularly prejudicial given the considerable evidence called by the Crown to suggest that Mr. Taylor was unarmed.

[31] In my view, the primary problem the appellant has with this argument is that his testimony simply does not leave the door open to the possibility that he may have been mistaken about what happened at the critical point in the altercation. The appellant’s evidence was clear and consistent. He pulled his gun and shot Mr. Taylor for the sole reason that Mr. Taylor pulled his gun and aimed it at him.

[32] During examination-in-chief, the appellant was adamant that Mr. Taylor had pulled a gun on him:

Q. And he went for his waist?

A. Right.

Q. What did you do?

A. I don’t remember if I pushed him or if I hit him.

Q. Yes?

A. But it left him unbalanced in a way.

Q. Yes?

A. And he went down in a crouching manner and he pointed a gun to me by his side.

Q. He was in a crouched position you said, Mr. Stewart?

A. Yes. Yes.

THE COURT: What was your evidence there, sir? I’m afraid I didn’t get it. He pointed a gun at me, and did you say “by his side”?

THE WITNESS: Yeah, by his side crouching down.

Q. I want to be clear. What do you mean by his side?

A. By his hip.

Q. All right. The gun was held at his hip?

A. Right.

Q. Or at the height of his hip, is that correct?

A. Correct.

[33] The appellant remained steadfast in cross-examination that he saw Mr. Taylor draw his gun and point it at him:

Q. Okay. And so he’s crouched down, right?

A. Right.

Q. What do you see next?

A. Well, he points a gun at me.

Q. From where?

A. From, as I said, his hip, on his hip crouching down.

Q. Is he able to point the gun? What is he doing with the gun in the crouched position?

A. I am not sure if the gun was fired or not, but I think he was trying to fire it at me.

[34] In the light of this unequivocal testimony, the evidence simply does not support the argument that the appellant may have reasonably but mistakenly believed that Mr. Taylor was armed.

[35] Equally problematic for the appellant is that at trial, his counsel focused exclusively on urging the jury to find that Mr. Taylor was armed and drew his gun, or to at least find a reasonable doubt on that issue. The appellant did not advance the theory that even if the jury rejected this argument, self-defence remained available if the jury accepted or had a reasonable doubt that the appellant reasonably held the honest but mistaken belief that Mr. Taylor had a gun and was about to fire it at the appellant.

[36] Furthermore, as counsel for the appellant acknowledges, later in his charge, the trial judge did instruct the jury that self-defence was available if they found that the appellant reasonably held the honest but mistaken belief that Mr. Taylor was about to shoot him. I refer to the following portions of the charge:

Please remember all three requirements must be met before the self-defence provision applies:

1. The accused must have honestly believed that he was about to be shot by Mr. Taylor....

Because the law of self-defence can be difficult to understand the first time it is explained to you, I want to summarize once again how self-defence may apply to this case. Firstly, for the defence to apply, you must have a reasonable doubt as to whether Mr. Stewart thought he was about to be shot by Mr. Taylor.

Ladies and gentlemen, in summary, self-defence arises if you first have a reasonable doubt whether Mr. Stewart honestly and reasonably believed that he was about to be shot by Mr. Taylor.

[37] In my view, the trial judge fairly and properly instructed the jury on this issue in the light of the trial over which he was presiding – a trial in which the entire focus was on whether Mr. Taylor was armed. In the pre-charge discussions defence counsel did not press the avenue of self-defence based on the appellant’s having a reasonably held honest but mistaken belief that Mr. Taylor was armed and did not object to the manner in which the trial judge put this possibility to the jury in his charge.

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

(b) The Third Branch of Self-Defence

[39] This ground of appeal focuses on the temporal aspect of necessity that arises in this case. What relevance, if any, is the opportunity the appellant may have had, prior to the actual confrontation, to avoid shooting Mr. Taylor?

[40] A potential avenue of retreat is a relevant consideration to the objective component of the third element set out in Pilon, concerning the reasonableness of the accused's belief that there was no other way to preserve himself from serious harm or death except by killing the deceased. Recently, this court explained it in R. v. Cain, 2011 ONCA 298, 278 C.C.C. (3d) 228, at para. 9:

Unlike s. 35 of the Criminal Code, s. 34(2) does not require defendants to retreat in the face of an assault, but rather permits defendants to stand their ground during the early stages of a confrontation. However, as the appellant concedes, the possibility of retreat is relevant to the second and third elements of the s. 34(2) defence, namely, the issues of whether the appellant did have a reasonable apprehension of death or grievous bodily harm, and whether the appellant had a reasonable belief that it was not otherwise possible to save himself from harm except by killing [the deceased].

[41] The appellant submits that the trial judge misdirected the jury on this issue by suggesting that self-defence would be unavailable if the jury concluded that the appellant could have protected himself by avoiding the confrontation altogether or at least by extricating himself from it before it escalated to the point that he was left with no option but to shoot and kill Mr. Taylor.

[42] According to the appellant, the problem started when the Crown suggested to the appellant in cross-examination that he could have avoided the need to shoot Mr. Taylor, for example, if he had called for the police before Mr. Taylor threatened to kill him or pointed a gun at him. The appellant submits that this line of questioning was improper, as the only issue for the jury’s consideration was necessity at the time the appellant decided to shoot Mr. Taylor.

[43] Therefore, relying on this court’s decision in Cain, at paras. 9-11, the appellant submits that the trial judge was obliged to correct the Crown’s implicit assertion that self-defence may not be available to the appellant given the early opportunities he had to avoid the situation. The appellant argues that rather than correcting the assertion, the trial judge actually exacerbated the error by the following instruction:

The question is whether it was reasonable for a person with Mr. Stewart’s background, knowing what he knew about Mr. Taylor, to believe that the only way to avoid being shot was to shoot first.

On one side, the evidence shows that Mr. Taylor was a committed gangster with an established record of violence. If you accept Mr. Stewart’s evidence, he was aware of all of that about Mr. Taylor. He had seen him rob and threaten people, and he had heard him brag about killing people before. If you decide that Mr. Taylor pulled a gun on Mr. Stewart, it would be open to you to conclude that Mr. Stewart reasonably believed that it was too late to run and that he had no choice but to shoot. As I said, that’s on the one side.

On the other side, it is open to you to take into account what Mr. Stewart knew about Mr. Taylor, and to ask yourselves when it was that he feared for his life. ... Based on Mr. Taylor’s criminal propensities, and what Mr. Stewart told you that he knew about him, you may well ask yourselves why Mr. Stewart didn’t fear for his life well before he saw the gun in Mr. Taylor’s hand. If you decide that Mr. Stewart’s fear, or in the language of the Criminal Code, his “reasonable apprehension of death or grievous bodily harm” came before Mr. Taylor pulled the gun and pointed it at him, then you may well conclude that his claim that he believed he had no choice but to pull the gun and shoot, was not a belief “on reasonable grounds” – in other words, not objectively reasonable. If his belief that he could not otherwise preserve himself except by drawing and firing was not objectively reasonable, then self-defence won’t help him, and you would conclude that the Crown has proved that Mr. Stewart did not act in self-defence.

[44] The appellant submits that the effect of this explanation was that the jury was erroneously instructed that if they found that he failed to retreat or to call the police early in the confrontation, the appellant forfeited his right to rely on self-defence.

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

[46] Considered in proper context, the part of the charge upon which the appellant relies in support of this ground of appeal does not limit the availability of self-defence to the appellant. The trial judge explained to the jury that it was open to them to find that the appellant acted in self-defence by accepting his testimony that, despite having the option of walking away at an earlier stage, he did not foresee the escalation of the altercation and that at the critical point when Mr. Taylor pulled his gun, he was left with no choice. He had to shoot. On the other hand, the trial judge correctly pointed out that if the appellant feared for his life and decided to shoot Mr. Taylor before Mr. Taylor had reached for his gun, it was open to the jury to find that the appellant’s belief that he had no choice but to shoot was not objectively reasonable.

[47] Significantly, as can be seen from the following excerpts of the charge, the trial judge clearly and correctly instructed the jury that the relevant time frame for assessing the appellant's claim of self-defence was the moment when Mr. Taylor said he was going to kill the appellant and drew his gun.

In considering whether Mr. Stewart was being assaulted, you must focus on the time just before the killing. ... As I will explain in more detail later, self-defence only applies in this case if you have a reasonable doubt that Mr. Stewart believed on reasonable grounds that he had no choice but to shoot. In the early stages of the confrontation, Mr. Stewart clearly had the choice of either calling for the police or simply walking away. His evidence was that he did not think things would have escalated the way they did, and that, for him, walking away or calling for help was not an option because of the gang code....

As I will explain later, the defence of lawful self-defence applies in this case only if, when Mr. Stewart fired at Mr. Taylor, he believed, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm. [Emphasis added.]

[48] In my view, the jury charge, read as a whole, fairly put the appellant's claim of self-defence to the jury. The trial judge at no point instructed the jury that the appellant could not claim self-defence if he failed to take advantage of an opportunity to avoid the height of the confrontation at an earlier stage of his dealings with Mr. Taylor. The trial judge made it clear - the jury’s task was to consider whether, at the time the appellant pulled the trigger, he had no choice but to shoot and kill Mr. Taylor.

(c) The issue of proportionality

[49] The appellant, relying on R. v. Hebert, 1996 CanLII 202 (SCC), [1996] 2 S.C.R. 272, submits that while not a “free-standing” ground of appeal, the trial judge erred by instructing the jury that they had to consider whether his use of force was proportional. In other words, the jury was told that the force used must be proportionate to the assault in order for self-defence under s. 34(2) to be available.

[50] The appellant relies on the following instruction in support of this submission.

[I]f you are satisfied beyond a reasonable doubt that Mr. Stewart used more force than he honestly and reasonably believed was necessary, or that he was reasonably aware that there were other means available to him than to apply deadly force, then you should reject the defence of self-defence and conclude that Mr. Stewart has committed an unlawful homicide.

[51] In my view, this passage discloses no error. It does not incorrectly insert a proportional force requirement. Rather, it correctly instructs the jury that self-defence is not available if the degree of force used was excessive in the light of what the accused honestly and reasonably believed to be necessary to protect himself: Hebert, at para 17; R. v. Siu (1992), 1992 CanLII 1014 (BC CA), 71 C.C.C. (3d) 197 (B.C.C.A.), at pp. 207-09; and R. v. Druken, 2002 NFCA 23, 164 C.C.C. (3d) 115, at paras. 21-23.

(2) Did the trial judge err in refusing to put the defence of provocation to the jury?

[52] Defence counsel asked the trial judge to leave provocation under s. 232 of the Code with the jury. The trial judge denied this request on the basis that there was no air of reality to the defence.

[53] In his ruling, the trial judge reviewed the evidence, including that relating to the criminal culture in which the appellant operated. The trial judge correctly set out the legal principles necessary to rely on the defence of provocation. Significantly for the purposes of this ground of appeal, he properly stated that the defence has both an objective and a subjective component. Objectively, there must be evidence of a wrongful act or insult sufficient to deprive an ordinary person of self-control. Subjectively, there must be evidence that the accused responded to this provocation before he had a chance to regain control: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350.

[54] The trial judge concluded that there was no evidence that could leave the jury with a reasonable doubt that the appellant’s confrontation with Mr. Taylor was such that it would deprive a person in his position of self-control or that the appellant shot Mr. Taylor while in such a state. In reaching this conclusion, the trial judge took into account the “complicating factor” of the appellant’s gangster lifestyle.

[55] The appellant submits that this ruling is in error given the appellant’s testimony that his encounter with Mr. Taylor escalated to the point that he lost control and shot him. Specifically, he relies on the following testimony:

• The appellant felt that he did not owe Mr. Taylor any money, but Mr. Taylor insisted that he did;

• Mr. Taylor demanded the money in a public place, in the presence of other apparent gang members;

• Mr. Taylor refused to speak to the appellant in private about the dispute and insisted on a public confrontation;

• As the argument progressed, Mr. Taylor’s friends surrounded the appellant;

• Mr. Taylor’s friends were “boosting him on”;

• Reputation and personal pride are important values to gang members and the appellant felt that he could not back down from the confrontation without being embarrassed or getting physically injured;

• Toward the end of the confrontation, the appellant told Mr. Taylor to “fuck off,” which suggested that he was losing self-control; and

• Mr. Taylor’s response, which was to threaten to kill the appellant, further inflamed the appellant and could have been seen by the jury as the “final spark” for the appellant’s loss of control.

[56] I would not give effect to this ground of appeal. As I have said, the appellant’s unwavering position was that shooting and killing Mr. Taylor was a deliberate act of self-preservation.

[57] The above-noted evidence the appellant relies upon must be understood in context. In this testimony, the appellant is describing his response to the unforeseen development of Mr. Taylor’s going for his gun. He felt threatened. He was frightened. He shot. This evidence does not allow for an interpretation that the appellant was provoked into a rage, lost control and shot Mr. Taylor.

[58] There was no other evidence capable of supporting a defence of provocation. I therefore agree with the trial judge that there was no air of reality to the defence and would not give effect to this ground of appeal.

(3) Did the trial judge err in his instructions to the jury by misstating portions and by failing to adequately recount pertinent evidence for the defence?

[59] The appellant submits that the trial judge failed to relate evidence relevant to the defence position on the pivotal issue of whether Mr. Taylor had a gun – evidence that was available to support the conclusion that Mr. Taylor was armed but that someone removed his gun and disposed of it before the police could get hold of it.

[60] Specifically, the appellant argues that the trial judge reviewed the relevant evidence about the significance of the fact that no gun but the appellant’s was found at the scene in a manner that bolstered the Crown’s position that the retrieval of only one gun meant Mr. Taylor was not armed. He submits that in so doing, the trial judge undermined the defence position that someone may have removed Mr. Taylor’s gun and disposed of it before the police arrived. For example, no mention was made of the fact that Mr. Taylor’s associates at the scene were not called to testify.

[61] The appellant contends that the trial judge’s unbalanced treatment of this issue was particularly prejudicial in the light of his erroneous repetition in the charge that a finding that Mr. Taylor was armed was effectively a pre-condition to self-defence’s being available to the appellant.

[62] I would not give effect to this ground of appeal. As I have said, the focus of the entire case was whether Mr. Taylor was armed. The trial judge, aware of the importance of this central issue, reviewed the evidence relevant to it, including that which was capable of supporting the finding that Mr. Taylor was armed even though no gun was found. I refer to passages such as:

You may consider that no gun was ever found when you consider whether you believe Mr. Stewart’s version of events, but in doing so, you must also consider the possibility that someone else retrieved the gun and disposed of it.

In considering whether anybody else may have grabbed the gun and disposed of it, you may find the scene captured on the video cameras to be helpful. … The video shows other young men in the area when the shooting happened, and you have evidence that there were young men in the area where Mr. Taylor collapsed and died. … You are entitled to ask yourselves whether there was any time for anyone to pick up the gun (if Mr. Taylor dropped it). But you must also consider that Mr. Taylor was able to run about 150 metres before he collapsed on the sidewalk…

You will have to ask yourselves whether it is reasonable to think that Mr. Taylor dropped a gun there, or anywhere else, and that with police everywhere, someone picked it up and hid it so that it was not found.

[63] In addition to the evidence brought to the jury’s attention in the charge, defence counsel reviewed the evidence that forms the basis of this ground of appeal in his lengthy closing address. Furthermore, the jury was once again reminded of much of this evidence in the trial judge’s summary of the defence position.

[64] Again, I note that various iterations of the jury charge were discussed in the course of the pre-charge conferences before the charge was finalized. I further note that no objection was made to this aspect of the charge. I see no error in the trial judge’s recitation of the evidence.

DISPOSITION

[65] In my opinion, the trial judge’s instructions, at the end of a 12-day trial, fairly and accurately gave the jury the tools needed to come to a verdict in this case, and I would therefore dismiss the appeal.

Released: (“JCM”) January 27, 2014 “Gloria Epstein J.A.”

“I agree. J.C. MacPherson J.A.”

“I agree. J. MacFarland J.A.”