COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Constantine, 2015 ONCA 330

DATE: 20150512

DOCKET: C53658

Hoy A.C.J.O., Feldman and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Romeo Constantine

Appellant

Richard Posner and Gabriel Gross-Stein, for the appellant

Deborah Krick, for the respondent

Heard: March 16, 2015

On appeal from the conviction entered on January 30, 2009 by Justice John R. Sproat of the Superior Court of Justice, sitting with a jury.

Hoy A.C.J.O.:

[1] The appellant, Romeo Constantine, was tried for the first degree murder of Otis Johnson. The trial judge did not put “defence of a third party” in former s. 37 of the Criminal Code, R.S.C. 1985, c. C-46 to the jury in his charge. On the evening of the fourth day of deliberations, the jury asked a question related to when shooting someone in defence of a person constitutes murder. Shortly after the trial judge answered the jury’s question, the jury found the appellant guilty of second degree murder.

[2] On appeal, the appellant argues that the trial judge made two errors in responding to the jury’s question. First, he erred in not putting “defence of a third party” in former s. 37 to the jury. Second, he did not adequately address the mens rea component of the question.

[3] As I explain below, I conclude that the trial judge did not err in either respect. I would accordingly dismiss this appeal.

Background

[4] The appellant and his friend, Karim Creighton, attended at an apartment with the ostensible purpose of purchasing two pounds of marijuana from Otis Johnson. A number of other people were in the small apartment, smoking weed and watching TV. Nine people, including the appellant and Creighton, testified to conflicting versions of what transpired.

[5] Creighton said he thought Johnson had short-changed him. He testified that Johnson refused to weigh the marijuana and became “vulgar” when Creighton asked him to. According to Creighton, Johnson stepped closer to him and put his hand toward the front of his waist to grab what Creighton thought was a weapon. Creighton said he was scared for his life. A struggle between Johnson and Creighton ensued in the cramped hallway of the apartment. Creighton testified that Johnson did not have a gun in his hand. Johnson quickly over-powered Creighton. In the course of the struggle, a gun went off and Johnson was shot. Johnson died as a result.

[6] The appellant testified that he saw Creighton and Johnson struggling. Creighton was holding Johnson’s arms against his sides in a bear hug. The appellant saw a gun in Johnson’s hand. The appellant says that he was frightened. He knew his and Creighton’s lives were in danger because he had seen a gun. He had brought Creighton to the apartment. Johnson was a big man – about six feet and 240 pounds – and was grappling with the lanky, 130-pound Creighton. The appellant was in shock. He testified that it was “just a natural instinct for me to react right away”. He jumped into the struggle and tried to take hold of Johnson’s gun. As the appellant and others grabbed for Johnson’s gun it discharged twice, shooting Johnson once.

[7] The theory of the appellant’s defence was that Johnson was accidentally shot by his own gun during the struggle. However, except for the appellant, none of the witnesses testified that Johnson had a gun in his hand and one of the witnesses testified that the appellant shot towards Johnson. Several witnesses testified that two shots were fired. One witness testified that the first shot hit an empty chair in the living room of the apartment, some distance from the apartment’s entrance (the appellant and Creighton testified Johnson and Creighton struggled in the entrance). And there was conflicting evidence as to who sparked the struggle that erupted between Creighton and Johnson.

[8] The theory of the Crown’s case was that Johnson was shot in the course of a robbery/home invasion by the appellant and Creighton. The appellant and Creighton were tried for first degree murder.

[9] Section 37 of the Code formerly provided:

(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

[10] Section 37 was a complete defence to killing another human being.

[11] In pre-charge discussions, the trial judge asked if the evidence raised an air of reality to self-defence for either or both accused based on their evidence as to their state of mind during the struggle and on the appellant’s evidence that Johnson had a gun. Discussion centred on former s. 34(2) of the Code.[^1] Counsel for the Crown and Creighton said that there was no air of reality to self-defence. Counsel for the appellant agreed that the evidence did not raise an air of reality to s. 34(2). He did not want the trial judge to instruct on self-defence under s. 34(2). Among other things, such an instruction would present the jury with a scenario in which the appellant fired at Johnson, a scenario inconsistent with the defence of accident. His position was that Johnson had a gun in his hand and the appellant intervened in the struggle in defence of Creighton, leading to the accident that resulted in Johnson’s death.

[12] The trial judge advised that self-defence would not be left with the jury and that he would provide brief reasons why self-defence did not raise an air of reality at a later point.

[13] At approximately 7:00 p.m. on the fourth day of deliberations, the jury reported that it was deadlocked and could not reach a verdict. The trial judge read an exhortation. Shortly thereafter, the jury asked a series of questions. The fourth and final question was:

If their intent was to complete a deal, but brought concealed weapons to this apartment, and as a result of a struggle, or in defence of a person knowingly shot someone without duress, or influence does this constitute murder?

[14] The next morning, the trial judge discussed his proposed responses to the questions with counsel. The trial judge then re-charged the jury. He responded to the jury’s final question as follows:

And the answer to that is as follows: this example in question four, in effect combines questions one and two of the jury charge into one question. The law, however, required you to approach this in two stages. As I have discussed earlier, you first determine on all of the evidence if you are satisfied beyond a reasonable doubt that the accused you are considering was a party to an unlawful act that caused the death of Mr. Johnson. If the answer to that is yes – then you proceed to the second question and determine on all of the evidence if you are satisfied beyond a reasonable doubt that the accused you are considering had the state of mind for murder. Members of the jury, I trust that has been helpful to you.

[15] Later that day, the jury returned its verdict. The appellant was convicted of second degree murder and Creighton of manslaughter.

[16] Post-conviction, the trial judge provided his reasons for not leaving self-defence with the jury: R. v. Constantine, [2009] O.J. No. 2027 (S.C.). He recounted Joseph Brown’s testimony that Creighton shot Johnson from eleven inches away, Justine Ramdowar’s testimony that the appellant shot Johnson as he lay on the floor five feet away, and the forensic evidence that the fatal shot was fired from three to seven feet away. The trial judge wrote, at para. 5, that for “there to be an air of reality to self defence there must be an air of reality to both the subjective and objective elements.” In the same paragraph, he characterized the altercation between Johnson and Creighton as “a wrestling match.” Then, at para. 6, he wrote:

With respect to [the appellant], all of the evidence is that he was several feet away when Mr. Johnson was shot. Assuming he was the shooter, and accepting his evidence, he saw a gun in Mr. Johnson’s hand at a time when Mr. Creighton had his arms around Mr. Johnson. He, therefore, shot Mr. Johnson from some distance away. There was no warning or any demand to stop. I do not see any air of reality to a reasonable belief on the part of [the appellant], in these circumstances, that he had to shoot Mr. Johnson from a distance in order to save himself or Mr. Creighton from death or serious bodily harm.

Should the trial judge have instructed the jury on defence of a third party under s. 37?

[17] The appellant argues that there was an air of reality to “defence of a third party” under former s. 37 and the trial judge accordingly ought to have included it in his charge to the jury. He submits that even if counsel’s tactics and submissions on self-defence justified the trial judge’s failure to include it in his charge, the legal landscape shifted when the jury posed its question after four days of deliberations and after advising the trial judge of deadlock. At that point, he says, an instruction on defence of a third party became mandatory.

[18] I must determine whether there was an air of reality to the defence under former s. 37. If there was no air of reality to the defence under former s. 37, the fact that the jury posed a question touching on that defence did not require the trial judge to put the defence to the jury.

[19] The air of reality test is whether there is evidence on which, if believed, a properly instructed jury acting reasonably could acquit: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 49, 60. It must be applied to each component of the defence: Cinous, at para. 95. In applying this test, the trial judge identifies the evidence most favourable to the accused and assumes it to be true, regardless of whether it was adduced or mentioned by the accused: R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at para. 25. The test “requires the trial judge to consider whether the inferences required to be established for the defence to succeed can reasonably be supported by the evidence”: Cinous, at para. 86. However, the trial judge does not determine the credibility of witnesses, weigh the evidence, make findings of fact or draw determinative factual inferences: Cinous, at paras. 54, 87. That is the role of the jury.

[20] The purpose of the air of reality test is to keep outlandish defences from the jury, so as to not invite confusion and unreasonable verdicts: Cinous, at para. 84.

[21] If a defence has an air of reality, the trial judge must put the defence to the jury whether or not defence counsel wants the defence before the jury: Cinous, at para. 51. Whether the evidence raises an air of reality to a defence is a question of law reviewed for correctness: R. v. Buzizi, 2013 SCC 27, [2013] 2 S.C.R. 248, at para. 15.

[22] The Ontario Specimen Jury Instructions[^2] identify, in question form, the three elements under former s. 37:

(1) Did [the accused] reasonably believe that s/he (or, somebody under his/her protection) was being unlawfully assaulted?

(2) Did [the accused] use force to defend him/herself (or, anybody under his/her protection from (what s/he reasonably believed was) the (an) unlawful assault?

(3) Did [the accused] use more force than was necessary to prevent (what s/he reasonably believed was) the (an) assault or to stop it from continuing or being repeated? [Emphasis in original.]

[23] The Crown concedes that there is evidence on which, if believed, a properly instructed jury acting reasonably could conclude that the first of the three elements of s. 37 was made out. The appellant testified that he and Creighton were friends, that he felt responsible for Creighton and that, on seeing a firearm in Johnson’s hand, he feared for Creighton’s life. The Crown also admits that the evidence of some of the other witnesses, considered in isolation, could support – although it submits “barely” – the appellant’s reasonable belief in an unlawful assault against Creighton.

[24] It argues that the second of the three elements does not satisfy the air of reality test because the evidence does not reasonably support an inference that the appellant shot Johnson for the purpose of defending Creighton.

[25] Nor, the Crown argues, is there an evidential foundation for the third element, the proportionality requirement. The Crown says that shooting Johnson to defend Creighton was excessive force.

[26] I start with the second element. I acknowledge that there can be an air of reality to a defence inconsistent with a defence advanced by the accused: see R. v. Kong, 2006 SCC 40, [2006] 2 S.C.R. 347. In Kong, a fight broke out between rival groups. Kong testified that he acted in self-defence. He held up a knife to scare off two assailants running toward him. When the two assailants kept running, he stepped forward and made a motion with his knife, either swinging or stabbing, to stop one of the assailants and protect himself. The assailant later died of a stab wound. Kong admitted that the knife may have caught the assailant’s clothing but testified that he did not stab the assailant. Kong’s primary defence at trial was that he did not stab the assailant. He also raised self-defence, but the trial judge held it had no air of reality. In R. v. Kong, 2005 ABCA 255, 371 A.R. 90, Wittmann J.A., concluded, in dissenting reasons, that there was an air of reality to self-defence under former s. 34(1) of the Code and the defence ought to have been put to the jury. The Supreme Court agreed with that conclusion.

[27] In Kong, there was a direct evidential link between the force used (stabbing) and the person defended (Kong). Here, the appellant did not testify that he had a gun and fired to defend Creighton. (Indeed, given the distance between the struggle and the location at which all the evidence places the appellant when he fired, there was considerable risk that the appellant would have shot Creighton if Creighton were locked in a struggle with Johnson.) Nor did the appellant say anything (such as “let go” or “stop”) to establish that he was shooting to defend Creighton. And I reject the appellant’s argument that the shot into an empty chair buttresses the inference that the appellant shot Johnson to defend Creighton. While it could be reasonably inferred that the appellant fired the shot that hit the chair, it cannot be reasonably inferred that the appellant fired into the empty chair as a warning. The chair was in a small, crowded space and one witness testified that he was standing near the chair when it was hit.

[28] On the other hand, an inference that the appellant shot Johnson to defend Creighton finds some support in the appellant’s evidence (Johnson’s arms were wrapped around Creighton’s upper body, Johnson had a gun, Creighton’s life was in danger, the appellant felt responsible for Creighton, and the appellant became involved to defend Creighton), Creighton’s evidence (Johnson was overpowering him and he feared for his life), Daniel Fairclough’s evidence that Johnson was “over top” of Creighton during the struggle, and the evidence of various witnesses that the appellant had a gun. Further, the bullet entry and exit wounds were consistent with a bullet entering Johnson while he was bent over top of Creighton.

[29] Whether or not there was an air of reality to the second of the three elements is a difficult question. While I might be inclined to agree with the Crown, it is ultimately not necessary to decide the question. Whether or not there was an air of reality to the second element, there was no air of reality to the proportionality requirement.

[30] I turn next to that requirement. As stated by Martin J.A. in R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 111, a person is not expected to “weigh to a nicety the exact measure of necessary defensive action” (citations omitted). Wittmann J.A. similarly cautioned that a tolerant approach must be applied in measuring proportionate force: Kong, at para. 216. The accused may be mistaken about the nature and extent of the force necessary, provided the mistake was reasonable in the circumstances. One must “look to the circumstances to consider what a reasonable person in the accused’s situation might do given the threatening attack and the force necessary to defend [the person under his protection] against that … attack”: Kong, at para. 209.

[31] I have been guided by Baxter and by Wittmann J.A.’s comments in Kong in my analysis.

[32] The evidence most favourable to the appellant includes the appellant’s evidence that Creighton’s arms were wrapped around Johnson’s upper body and that Johnson had a gun, and Creighton’s evidence that Johnson was overpowering him and he feared for his life. In my view, on this evidence, a properly instructed jury acting reasonably could not conclude that a reasonable person in the appellant’s situation would have shot Johnson in the core portion of his body to defend Creighton. On any version of the struggle between Creighton and Johnson, Creighton’s life did not stand in immediate peril. In such circumstances, a reasonable person would have attempted to disarm Johnson. Applying a tolerant approach, the force applied was excessive.

[33] I accordingly conclude that the trial judge did not err in failing to put the defence in former s. 37 to the jury in response to their question.

[34] I would, however, add this. While there was no air of reality to the defence in former s. 37, it would have been more helpful if, in responding to the jury’s question, the trial judge had instructed the jury that: a) acting in defence of a person is a complete defence to murder if certain, very strict conditions are met; b) the law defines those conditions, encompassing the circumstances in which a person may lawfully defend another person and the nature and extent of the force a person may use to defend another person; c) those strict conditions were not made out on the evidence in this case and, accordingly, d) if the appellant shot Johnson with the intent required for murder, the appellant committed murder. Such an answer would have more directly responded to the jury’s question. However, the appellant does not argue that the trial judge’s failure to respond in this fashion amounted to error or that there was a miscarriage of justice as a result. I see no basis to interfere.

[35] I now turn to the second issue raised by the appellant.

Did the trial judge fail to adequately respond to the mens rea component of the jury’s fourth question?

[36] The appellant argues that the trial judge’s answer to the jury’s fourth question inadequately responded to the mens rea component of the jury’s question.

[37] The appellant and the Crown agree that even if the evidence did not raise an air of reality to a defence under former s. 37, whether the appellant shot Johnson to defend Creighton is relevant to whether or not the appellant had the requisite intent for murder. For example, shooting in defence of another person (in a lay-person’s terms) may indicate that the shooter acted instinctively without thinking about the consequences. If the appellant were party to an unlawful act causing the death of Johnson but did not have the intent required for murder, he would be guilty of the lesser offence of manslaughter.

[38] The jury’s question indicated that it was considering that the appellant might have shot Johnson to defend Creighton. It was struggling with how such a scenario would play into its determination of whether or not the appellant had murdered Johnson.

[39] The appellant argues that the trial judge’s response, in which he told the jury to “determine on all of the evidence if you are satisfied beyond a reasonable doubt that the accused you are considering had the state of mind for murder”, did not adequately address the mens rea component of the issue raised by the jury.

[40] The appellant submits the trial judge had to instruct the jury something along the following lines:

A shooting in defence of another person may be consistent with acting on the sudden or instinctively without thinking about the consequences. You may find that if [the appellant] shot Mr. Johnson in defence of Mr. Creighton, that he did not have the intent to kill or cause bodily harm that he knew was likely to cause death. However, that is a matter for you to decide, and it is only one factor in assessing whether or not the Crown has proven beyond a reasonable doubt that [the appellant] had the requisite intent for murder. If you have a reasonable doubt that [the appellant] had the requisite intent, then you would find him not guilty of murder.

[41] I keep in mind the admonition of Cory J. in R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 530:

There can be no doubt about the significance which must be attached to questions from the jury and the fundamental importance of giving correct and comprehensive responses to those questions. With the question the jury has identified the issues upon which it requires direction. It is this issue upon which the jury has focused. No matter how exemplary the original charge may have been, it is essential that the recharge on the issue presented by the question be correct and comprehensive. No less will suffice. The jury has said in effect, on this issue there is confusion, please help us. That help must be provided.

[42] I reject the appellant’s submission that the trial judge’s response did not adequately address the mens rea component of the issue raised by the jury. In my view, the trial judge adequately answered the jury’s question to the extent it related to the mens rea for murder.

[43] As part of his response to the jury’s questions, the trial judge first addressed the intent for murder. He reiterated that the Crown must prove that the appellant (a) intended to kill Johnson, or (b) intended to cause bodily harm to Johnson that he knew was likely to kill and was reckless about whether Johnson died. He explained that the jury should “look at Mr. Creighton’s and [the appellant’s] words and conduct before, at the time, and after the unlawful act that caused Mr. Johnson’s death. Consider any evidence that they acted on the sudden or instinctively without thinking about the consequences and without either state of mind required to make the unlawful killing murder” (emphasis added).

[44] The trial judge then described the evidence that “may be relevant to state of mind” as including specific evidence. The evidence listed included: “evidence as to wrestling with Mr. Johnson at the door; evidence as to what occurred at the time Mr. Johnson was shot, including whether he was shot from a distance or close range or a couple of feet or further away; … [and the appellant’s] evidence that Mr. Johnson had a gun.”

[45] The trial judge’s answer to the jury’s fourth question – directing the jury to determine if on all of the evidence it was satisfied that the appellant had the state of mind for murder – then follows, on the next page of the transcript.

[46] The trial judge specifically directed the jury to consider whether the appellant “acted on the sudden or instinctively without thinking about the consequences and without either state of mind required to make the unlawful killing murder” and adverted to the evidence that would explain why the appellant might have acted on the sudden (the wrestling at the door, what occurred at the time that Johnson was shot, the appellant’s evidence that Johnson had a gun). His answer to the mens rea aspect of the jury’s question was correct and comprehensive.

Disposition

[47] I would accordingly dismiss the appeal.

Released: May 12, 2015 (A.H.)

“Alexandra Hoy A.C.J.O.”

“I agree K. Feldman J.A.”

“I agree Paul Rouleau J.A.”

[^1]: Former s. 34(2) provided as follows: Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

[^2]: D. Watt, Ontario Specimen Jury Instructions (Criminal), 2005 Supp. (Toronto: Thomson Carswell, 2005), at p. 209 (Final 68).