COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Doucette, 2015 ONCA 583

DATE: 20150828

DOCKET: C53432

Strathy C.J.O., Doherty and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Doucette

Appellant

Candice Suter, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: April 14, 2015

On appeal from the conviction entered on April 27, 2010 and the sentence imposed on June 3, 2010 by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a jury.

Doherty J.A.:

OVERVIEW

[1] The appellant was charged with first degree murder and convicted by a jury of second degree murder. The trial judge imposed a sentence of life imprisonment without eligibility for parole for 15 years. The appellant appeals conviction and sentence.

[2] On the conviction appeal, the appellant contends that the trial judge misdirected the jury on an essential element of his self-defence claim and erred in law in failing to leave the statutory defence of provocation with the jury. The appellant further argues that the trial judge misstated the evidence of two witnesses on matters that were of significance to the defence. On the sentence appeal, the appellant submits that the trial judge’s finding as to the motive for the murder is inconsistent with the jury’s acquittal of the appellant on the charge of first degree murder. The appellant also argues that the trial judge failed to give proper effect to various mitigating factors.

[3] For the reasons that follow, I would dismiss the appeal.

THE EVIDENCE AT TRIAL

[4] The appellant shot and killed Jesse Batisse outside of a Toronto bar at about 1:00 a.m. on December 24, 2006. The Crown alleged that the appellant was angry with Mr. Batisse as a result of an earlier altercation in the bar. On the Crown’s theory, the appellant, who was much smaller than Mr. Batisse, got the worst of that altercation and decided to get his revenge. The Crown contended that the appellant went home and got his gun and returned to the bar to await Mr. Batisse’s departure. When Mr. Batisse left the bar, the appellant, who was waiting for him on the street, approached Mr. Batisse, pulled his gun and shot and killed Mr. Batisse. Mr. Batisse was hit with three bullets. Two entered his chest on a downward trajectory and one entered his back in the region of the buttocks. A fourth shot struck Daniel Pohl-Miranda, Mr. Batisse’s friend.

[5] The appellant fled the scene and disposed of his weapon. He was arrested about two weeks later.

[6] The appellant testified. He described his altercation in the bar with Mr. Batisse, depicting Mr. Batisse as the aggressor. The appellant testified that he left the bar and happened to meet his father. According to the appellant, the meeting between himself and Mr. Batisse on the street outside the bar a short time after the altercation in the bar was happenstance. The appellant testified that Mr. Batisse was the aggressor from the outset. He walked toward the appellant aggressively, swore at him, threatened him, and then struck him in the face. Mr. Batisse then reached into his waistband for his gun. The appellant had seen that Mr. Batisse was carrying a gun in his waistband earlier that evening in the bar. The appellant testified that he feared for his life, drew his gun, which he routinely carried for protection, and fired in self-defence as he moved away from Mr. Batisse. The appellant testified that he did not intend to kill Mr. Batisse.

[7] No gun was found on Mr. Batisse’s body or at the scene. None of the witnesses who saw any part of the altercation that culminated in Mr. Batisse’s shooting put Mr. Batisse in possession of a firearm. There was no forensic evidence to put Mr. Batisse in possession of a firearm.

[8] The defence maintained that Daniel Pohl-Miranda, who was with Mr. Batisse and was also shot but not seriously hurt, had picked up Mr. Batisse’s gun after Mr. Batisse was shot. Mr. Pohl-Miranda left the scene in a taxi and went to his father’s home and later went to the hospital. The defence contended that Mr. Pohl-Miranda went to his father’s home to dispose of the weapon.

[9] Matthew Brown, a defence witness, testified that sometime after the shooting, Mr. Pohl-Miranda told him that he had picked up Mr. Batisse’s gun at the scene. According to Mr. Brown, he saw Mr. Pohl-Miranda with the gun. Mr. Brown was familiar with the gun and had seen Mr. Batisse with the same gun sometime before the shooting.

[10] Mr. Pohl-Miranda testified and denied any knowledge of any gun at the scene. He also denied that he ever told Mr. Brown that he had picked up the gun or he had showed a gun to Mr. Brown.

[11] The jury’s acquittal on the charge of first degree murder indicates that it did not accept the Crown’s argument that the appellant decided to kill Mr. Batisse, went home to get his gun, and returned to the street outside of the bar to await Mr. Batisse’s departure from the bar. The conviction on the charge of second degree murder indicates that the jury was satisfied beyond a reasonable doubt that the appellant fired the gun at Mr. Batisse with the intention required for murder and did not act in self-defence.

THE CONVICTION APPEAL

A. THE ALLEGED MISDIRECTION IN THE SELF-DEFENCE INSTRUCTION

[12] The trial took place before the enactment of the current self-defence provisions (S.C. 2012 c. 9, s. 2). The trial judge left self-defence as defined in the former s. 34(2) with the jury. That section provides:

Everyone who is unlawfully assaulted and who causes death or grievous bodily harm 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.

[13] Section 34(2) identifies three elements of a self-defence claim under that section.

• The accused must have been unlawfully assaulted.
• The accused must have caused the death of the other person under a reasonable apprehension of death or grievous bodily harm.
• The accused must have believed on reasonable grounds that the only way he could save himself from death or grievous bodily harm was by killing the other person.

[14] The unlawful assault requirement, the first of the three elements identified above, is central to this ground of appeal.

[15] In his self-defence instruction, the trial judge attempted to focus the jury’s attention on the crucial, factual dispute – did Batisse have a gun and did he do something in respect of that gun that caused the appellant to reasonably apprehend death or grievous bodily harm and to believe that he could not save himself except by pulling out his gun and firing at Mr. Batisse?

[16] Under a heading “Starting Point”, the trial judge told the jury:

The accused has admitted identity as the person who killed Jesse Batisse. The key issue in this case is whether or not the accused acting in lawful self-defence in shooting Mr. Batisse to death and the key factual issue is whether or not the deceased, Jesse Batisse, had a gun in his hand before the accused, Thomas Doucette, extracted his concealed gun from his jacket, if he did so, and shot at the accused four times.

[17] The trial judge described the “key factual issue” in various ways during his jury instruction. On occasion, he told the jury to consider whether the deceased “had a gun in his hand”; at other times he told the jury to consider whether the deceased “had exposed a gun”; at still other times he told the jury to consider whether the deceased had “pulled out” his gun; and on another occasion he told the jury to consider whether the deceased “had in fact his gun out first and pointed it in the general direction of the accused”.

[18] The trial judge repeatedly told the jury that it was incumbent on the Crown to prove beyond a reasonable doubt that the appellant had not acted in self-defence. He tied this instruction on the burden of proof to the key factual issue in these terms:

Should the Crown fail to satisfy you beyond a reasonable doubt that the deceased Batisse did not have a gun in his hand prior to the accused Doucette withdrawing his gun, it is most likely that the Crown would have failed to satisfy you beyond a reasonable doubt that the defence of self-defence is unavailable to the accused. In other words, the accused must be acquitted outright of all charges.

[19] The language used by the trial judge in describing the actions of Mr. Batisse that could constitute an assault for the purposes of s. 34(2) tracked the language used by the appellant in his description of Mr. Batisse’s actions. The appellant described a rapidly evolving and escalating confrontation. It began with harsh words, quickly accelerated to a physical assault on the appellant, followed immediately by Mr. Batisse going for the gun that was tucked in his belt. In his testimony, the appellant described Mr. Batisse’s movements that precipitated the appellant reaching for his gun in various ways. Some are set out below:

When he reached for his gun, all I thought was this guy was gonna kill me and I pulled the gun out of my pocket…

I seen his gun coming out at the same time that I’m reaching for my gun…

And I see the quick gesture to grab his gun. And I see him pull it out like this. And when he has it out, I already have mine out, and I ran away…

I saw it as I’m pulling out my gun too. We both reach. Like he reach for his gun, I reach more [sic] my pocket. My pocket’s closer to my right hand than him. And he’s intoxicated. I don’t know if he’s having trouble getting it out or what…

I saw him long enough to see that he had pulled out his gun, and it looked like he was turning it to point in my direction, and that’s when I ran away…

[20] In essence, the appellant testified that Mr. Batisse was in the process of pulling his gun from his waistband when the appellant, acting in self-defence, quickly reached into his jacket pocket, pulled out his gun and fired. As the trial judge suggested to the appellant during his testimony, it was the appellant’s position that Mr. Batisse went for his gun, but the appellant beat him to the draw.

[21] Ms. Suter, counsel for the appellant, accepts that the trial judge correctly limited his self-defence instruction to s. 34(2). She also agrees that it was incumbent on the trial judge to tailor the self-defence instructions to the specific facts of the case. She submits, however, that in doing so, the trial judge had to tell the jury that insofar at the assault component of s. 34(2) was concerned, the question was whether the appellant reasonably believed that Mr. Batisse was about to shoot him when the appellant pulled his gun and fired at Mr. Batisse. Ms. Suter submits that instead of focusing on the appellant’s belief and the reasonableness of that belief, the trial judge focused on a very narrow factual question – who went for their gun first? She submits that the answer to that question would not necessarily determine whether the appellant reasonably believed that his life was being threatened by Mr. Batisse.

[22] Counsel submits that a proper instruction on the assault component of s. 34(2) required that the jury be told to consider:

• Did the accused subjectively apprehend that he was being unlawfully assaulted?
• Evaluated objectively, was it reasonable for the accused to believe he was being assaulted?
• Would the assault perceived by the accused be, as an objective fact, an unlawful assault?

[23] Counsel is on solid legal ground in submitting that a reasonable belief by an accused that he is being assaulted or is about to be assaulted will satisfy the assault component of self-defence as defined in the former s. 34(2): see R. v. Pétal, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3 at paras. 20-22; R. v. Currie (2002), 2002 CanLII 44973 (ON CA), 166 C.C.C. (3d) 190 at paras. 50-52 (Ont. C.A.). Counsel is also correct in her submission that this jury was not instructed to consider whether the appellant reasonably believed he was about to be shot by Mr. Batisse when he pulled his gun and fired. The Crown submits, however, that on the facts of this case the instruction now urged on appeal was unnecessary and potentially confusing.

[24] Recently, Moldaver J., for the court, in R. v. Rodgerson, 2015 SCC 38, [2015] S.C.J. No. 38, at paras. 50-53, forcefully reiterated the need for trial judges to provide jury instructions tailored to the specific case. As he stressed, trial judges must, to the extent compatible with the evidence and the issues in the particular case, “decant and simplify” the jury instruction. In doing so, trial judges should avoid instructions which, while legally correct, are unnecessary to a proper and full deliberation of the case as presented to the jury. Moldaver J. observed, at para. 51:

The failure to isolate the critical issues in a case and tailor the charge to them inevitably makes the instructions less helpful to the jury and adds unnecessarily to their length and complexity.

[25] The trial judge’s approach in this case did isolate the crucial factual issue for the jury. The self-defence claim depended entirely on the appellant’s evidence. According to his evidence, he was moved to shoot Mr. Batisse because he saw him pulling his gun from his waistband. The appellant’s evidence leaves no realistic basis for the suggestion that although Mr. Batisse may not in fact have been armed or may not in fact have been removing the gun from his waistband, the appellant reasonably believed that he was armed and was drawing his weapon. Drawing a distinction between what the appellant reasonably believed and what the appellant said happened was unwarranted on this evidence and could only lead to unnecessary complexity in the jury instruction: see R. v. Stewart, 2014 ONCA 70, 306 C.C.C. (3d) 269, at paras. 26-31; R. v. Rochon, 2003 CanLII 9600 (ON CA), [2003] O.J. No. 1155 (C.A.), at paras. 36-38.

[26] I do not accept the submission that the trial judge mischaracterized or denigrated the self-defence claim by telling the jury that the defence turned on the jury’s determination of who drew his weapon first. The appellant did not suggest that he feared for his life before he saw Mr. Batisse drawing his weapon. It was that action which the appellant relied on to justify the deadly force he used. If the jury was satisfied that the appellant pulled out his weapon before he saw Mr. Batisse pulling out his, there was no factual basis for the self-defence claim.

[27] I also cannot accept that the trial judge materially misstated the appellant’s evidence in directing the jury as to the evidentiary basis for the self-defence claim. As set out above, the trial judge used different phrases to describe the actions of the deceased that the appellant said led him to use deadly force. The appellant also used different phrases in describing the actions of the deceased.

[28] Read as a whole, I think the trial judge’s instructions would convey to the jury a proper understanding of the unlawful assault component of s. 34(2). Namely, that it was made out unless the Crown proved beyond a reasonable doubt that Mr. Batisse was not in the process of reaching for and pulling his gun out from his waistband when the appellant removed his gun from his pocket and shot and killed Mr. Batisse. In my view, that was an accurate statement of the unlawful assault requirement in s. 34(2) in the context of the evidence adduced in this case.

B. was the statutory defence of provocation available?

[29] Counsel for the appellant at trial asked that provocation be left with the jury. The trial judge refused to leave the defence, noting that it was inconsistent with the self-defence claim advanced by the appellant in his evidence. The appellant submits that the trial judge erred in law in refusing to leave the defence.

[30] The defence of provocation is predicated on a loss of self-control in response to a wrongful act or insult. By its very nature, it is somewhat inconsistent with a self-defence claim which asserts a justifiable reaction to a threat or assault. However, both defences can be available on the evidence. As with any defence, provocation must be left with jury if there is evidence upon which a properly instructed jury, acting reasonably, could give effect to the defence: R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at para. 23; R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420 at paras. 21-22. The “air of reality” test looks at the totality of the evidence and at the conduct of the trial as a whole. The fact that a defence is incompatible with the primary defence advanced at trial does not mean there is no “air of reality” to that defence: Gauthier, at para. 32; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 10.

[31] The nature of the primary defence advanced may, however, factor into a consideration of whether there is “an air of reality” to a defence which conflicts with the primary defence. As explained in R. v. Pappas, 2013 SCC 56, [2013] 2 S.C.R. 452, the air of reality inquiry demands a limited weighing of the evidence. Defences are not properly left with the jury if supported only by some isolated piece of evidence ripped from the context of the rest of the evidence. Thus, in Pappas, the appellant’s assertion that he had “snapped” in response to comments by the deceased could not, having regard to the totality of the evidence, cause a jury to reasonably have a doubt as to whether the appellant had lost control as a result of the deceased’s implied threat: Pappas, at para. 41; see also R. v. Krasniqi, 2012 ONCA 561, 291 C.C.C. (3d) 236, at para. 56. In short, the entirety of the record must provide a basis upon which a jury could reasonably give effect to the defence.

[32] The elements of the defence of provocation as set out in s. 232 of the Criminal Code are well known and need not be repeated here: see R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 25-38. For present purposes, I need focus only on the subjective component of the defence.

[33] Provocation is available if an accused acted in response to an unlawful act or insult on the sudden before there was time for his passion to cool. As with the other elements of the defence, it is the Crown’s responsibility to negate this element of the defence: see Tran, at paras. 36-38.

[34] On the appellant’s evidence, he was assaulted by Mr. Batisse on the street immediately before he shot him. However, there is no suggestion in the appellant’s evidence that he lost control or responded in the heat of the moment to Mr. Batisse’s threatening conduct. To the contrary, on the appellant’s evidence, he had tried to calm Mr. Batisse down, both during the altercation inside the bar and again when Mr. Batisse approached him aggressively on the street. In his examination-in-chief, the appellant testified that he shot Mr. Batisse because he feared for his life, intending only to “get away before I was shot”. The appellant’s evidence effectively negates any suggestion that he had lost control when he pulled his gun and fired in Mr. Batisse’s direction.

[35] The only reference to anger in the appellant’s testimony occurred during his cross-examination. The appellant acknowledged that he “started” to become angry on the street when his repeated attempts to calm Mr. Batisse down and avoid conflict with him did not appear to be working. On the appellant’s evidence, immediately after he “started” to become angry, Mr. Batisse struck him in the face knocking him backwards. As he was stumbling back, the appellant saw Mr. Batisse’s “gun coming out”. The appellant responded by pulling his gun and shooting Mr. Batisse.

[36] As indicated in Pappas, the appellant’s single reference to “becoming angry” cannot be used in isolation to suggest a loss of control which warrants a provocation instruction. Considered in its entirety, the appellant’s evidence not only provided no basis for a provocation instruction, but strongly pointed away from any suggestion that the appellant had acted out of any emotion other than a justifiable need to save his own life.

[37] Nothing in the rest of the evidence gives any air of reality to a provocation claim. According to Mr. Batisse’s friends, it was the appellant who was the aggressor on the street. On their evidence, he confronted Mr. Batisse and shot him in cold blood. The evidence of the independent witnesses who observed part of the altercation, while far less incriminating from the appellant’s perspective, offered no support for a provocation defence.

[38] The trial judge properly refused to leave provocation with the jury.

C. the alleged misdirection on the evidence of the witness Lisa gray

[39] Lisa Gray happened to be standing outside having a cigarette when she saw an argument between two men. She described one as tall and slim and the other as shorter. Ms. Gray went back inside a bar only to hear shots shortly afterwards. She returned outside a few minutes later and saw the tall man lying in an alcove on the ground. He had been shot.

[40] The defence called Ms. Gray apparently to support the appellant’s evidence that he and Mr. Batisse had argued on the street immediately before the shooting. The Crown maintained, based on Ms. Gray’s description of the persons involved in the argument, that Ms. Gray had in fact seen Mr. Pohl-Miranda and his girlfriend arguing on the street. Ms. Gray had described the tall person involved in the argument as “slim”. Mr. Batisse weighed 300 pounds.

[41] The trial judge made three references to Ms. Gray’s evidence in his instructions to the jury. One reference, made in the context of setting out the position of the defence, described Ms. Gray’s evidence from the defence perspective. A second reference put the Crown’s position with respect to her evidence to the jury. The other reference to Ms. Gray’s evidence occurred in the course of the trial judge’s explanation that different witnesses could see the same events differently. After referring to Ms. Gray’s description of the two people involved in the argument, the trial judge opined that based on her description of the people involved, Ms. Gray had likely seen Mr. Pohl-Miranda and his girlfriend arguing. He pointed out that Ms. Gray was standing some distance away in the dark.

[42] It is unfortunate that the trial judge weighed in to support the Crown’s interpretation of Ms. Gray’s evidence over that advanced by the defence. The jury was perfectly capable of addressing the competing arguments without the benefit of the trial judge’s opinion.

[43] I am satisfied, however, that the trial judge’s comments did not cause any prejudice. Ms. Gray’s evidence was of little value to the Crown or the defence. There was no dispute that the appellant and Mr. Batisse had a confrontation on the street that involved some kind of verbal exchange followed by gunfire. Ms. Gray’s evidence, regardless of the interpretation one might take of it, did not meaningfully advance the case for either the Crown or the defence.

D. the alleged misapprehension of matthew brown’s evidence

[44] Matthew Brown was a defence witness. He was called for two purposes. First, to put a handgun in the possession of Mr. Batisse at some time prior to the shooting and, second, to put the same handgun in the possession of Mr. Batisse’s friend, Mr. Pohl-Miranda, sometime after the shooting. This evidence was offered to support the defence position that Mr. Batisse had a gun when the appellant shot him and that Mr. Pohl-Miranda had taken it from the scene of the shooting.

[45] Mr. Brown testified that Mr. Batisse was a very good friend of his. He indicated that he had seen Mr. Batisse with a handgun and described the gun in some detail. He also testified that he saw Mr. Pohl-Miranda with the same gun about three months after Mr. Batisse was shot. According to Mr. Brown, Mr. Pohl-Miranda said he had picked the gun up at the scene after Mr. Batisse was shot.

[46] Mr. Brown’s evidence as to when he saw Mr. Batisse with the gun is not clear. In his examination-in-chief, immediately after counsel for the appellant established Mr. Brown had seen Mr. Batisse in possession of a gun, the following exchange occurred between counsel and Mr. Brown:

Q. Now when you were in custody, on the 23rd and 24th of ’06 how long – when did you go in, do you recall?

A. It was May 24 weekend prior to that.

Q. Did you see the gun before this date?

A. Yeah I have.

[47] There were no further questions in-chief about when Mr. Brown saw Mr. Batisse with the gun.

[48] In cross-examination, Mr. Brown was asked about being incarcerated on the May long weekend in 2006. He told counsel that he was jailed for impaired driving and fail to provide a breath sample, but that he was required to remain in custody on other charges. The other charges were not identified.

[49] Crown counsel’s cross-examination concluded with the following:

Q. And when were you shown this gun?

A. Two months – two weeks before I went to custody, I got arrested for B and E.

Q. And where did you see it?

A. Tasty’s at the bar, a bar we used to chill out every day. Tasty’s.

[50] In reply, and by way of an agreed statement of fact, the jury was told that Mr. Batisse was in custody from January 22, 2006 until November 21, 2006.

[51] Both counsel, in their closing arguments, referred to Mr. Brown as having testified that he saw the gun in Mr. Batisse’s possession about two weeks before he went into custody on the May long weekend in 2006. The defence argued that while Mr. Brown was in error as to the date, given that Mr. Batisse was in custody at that time, his error should not undermine the credibility of his evidence that he had seen Mr. Batisse with the gun before Mr. Batisse was shot and later saw the same gun in the possession of Mr. Pohl-Miranda.

[52] In his closing instructions, the trial judge, not surprisingly, took the same view of the evidence as had counsel. He told the jury, that based upon the admitted fact that Mr. Batisse was in jail in May 2006, Mr. Brown could not have seen him in possession of the gun some two weeks before the May holiday as he testified. The trial judge went on to say:

That flagrant mistake on Brown’s part may indicate that he is perjuring himself as part of a plot to save his classmate’s brother from conviction. After all, the accused has no chance of acquittal whatsoever unless a gun somehow appears in Jesse Batisse’s hand immediately prior to his being shot.

[53] On appeal, counsel submits that the trial counsel and the trial judge misunderstood Mr. Brown’s evidence. Counsel argues that Mr. Brown testified that he went to jail in May 2006 on drinking and driving-related charges, but that he placed the time at which he saw Mr. Batisse with the gun by reference to Mr. Brown’s incarceration on break and enter charges. The date on which he was incarcerated on these charges was never identified. Counsel submits that evidence that Mr. Batisse was in jail between January and November 2006 did not, therefore, mean that Mr. Brown was wrong in his recollection of when he saw Mr. Batisse with the gun.

[54] I agree that Mr. Brown’s evidence about when he saw the gun in Mr. Batisse’s possession is far from clear. It was, however, open to the interpretation given to it by counsel and the trial judge. Mr. Brown testified he went to jail on the May long weekend in 2006 for drinking-related charges and continued in custody on other charges. No one inquired as to the nature of those additional charges. They may have involved a break and enter charge. It is important to bear in mind that it was counsel for the appellant who first linked the timing of Mr. Brown’s being shown the gun by Mr. Batisse with Mr. Brown’s incarceration on the May long weekend in 2006. Mr. Brown was a defence witness and one must presume that counsel was aware of the nature of his evidence.

[55] The appellant has failed to demonstrate, based on the trial record, that the trial judge misapprehended Mr. Brown’s evidence as to when he saw a gun in Mr. Batisse’s possession.

[56] The appellant also seeks to adduce fresh evidence on appeal in support of the argument that everyone at trial misunderstood Mr. Brown’s evidence about when he saw the gun. In substance, the fresh evidence is proffered to show that Mr. Brown was charged with breaking and entering in December 2005 and not May 2006. Mr. Batisse was not in custody in the entire two months leading up to Mr. Brown’s arrest for breaking and entering in December 2005. Consequently, argues the appellant, Mr. Brown’s evidence as to when Mr. Batisse showed him the gun is not as demonstrably false as suggested at trial.

[57] Notably absent from the proffered fresh evidence, is anything from Mr. Brown purporting to clarify when he was shown the gun by Mr. Batisse. The appellant’s position is that the various court documents filed make it safe to assume that Mr. Brown’s reference to being arrested for break and enter is a reference to the arrest in December 2005. It may be, or it may not be. Without anything from Mr. Brown, the evidence proffered on appeal has little, if any, probative value and could not reasonably be expected to have affected the verdict. I would not admit the fresh evidence.

E. conclusion

[58] I would dismiss the conviction appeal.

the sentence appeal

[59] In imposing a sentence of life imprisonment without eligibility for parole for 15 years, the trial judge said:

I have often said, and it bears repeating, that the use of guns in Toronto is a scourge to this community and must be stopped. The use of guns can be deterred only by the imposition of exemplary sentences.

[60] This court has repeatedly said the same thing: e.g. see R. v .Danvers, 2005 CanLII 30044 (ON CA), [2005] O.J. No. 3532, paras. 75-78; R. v. Paredes (2014), 2014 ONCA 910, 317 C.C.C. (3d) 415, at para. 44 (Ont. C.A.).

[61] The circumstances of this murder placed it squarely among those that demand a strong denunciatory sentence. The appellant, armed with a loaded handgun, opened fire on Mr. Batisse on a public street. He not only shot Mr. Batisse three times, he wounded Mr. Miranda with a fourth shot.

[62] The appellant acknowledged in his evidence that he routinely carried a loaded handgun on the streets of Toronto. He was on bail at the time he shot Mr. Batisse and the terms of his bail prohibited him from possessing a firearm. He was also in violation of a curfew term of that bail. The appellant has a criminal record that includes an assault and a threatening charge.

[63] These circumstances, all aggravating, justified the imposition of a period of parole ineligibility beyond the 10-year minimum, despite the appellant’s youth. He was 20 years old at the time of the murder. This court will not interfere with the parole ineligibility period chosen by a trial judge unless the appellant demonstrates error in principle or convinces the court that the period of ineligibility is manifestly excessive.

[64] Counsel for the appellant diligently advanced various alleged errors in principle made by the trial judge. I am satisfied that the trial judge did not err in principle. I do not propose to examine each argument separately, but will refer to two of the arguments advanced by counsel.

[65] The appellant argues that the trial judge was not entitled to find for the purposes of sentencing that Mr. Batisse was unarmed when shot by the appellant. She submits that the jury’s verdict does not necessarily mean that Mr. Batisse was unarmed. The verdict means only that the jury rejected the appellant’s evidence that he pulled his gun in response to Mr. Batisse’s reaching for and pulling out his gun.

[66] I accept that the jury’s verdict does not necessarily mean that the jury was satisfied that Mr. Batisse was unarmed, although the verdict strongly suggests that conclusion. It was, however, open to the trial judge on the evidence to find for the purposes of sentencing that Mr. Batisse was unarmed: see Criminal Code, s. 724(3)(a)(e). In any event, it does not appear to me that the trial judge treated the fact that Mr. Batisse was unarmed as a separate aggravating factor on sentence.

[67] Counsel also submitted that the trial judge’s finding that the murder was an “execution” was inconsistent with the jury’s verdict acquitting the appellant on the charge of first degree murder. The trial judge’s language may be open to the interpretation urged by counsel. It must, however, be read in the context of the verdicts. The trial judge was clearly alive to the fact that the appellant was acquitted on the charge of first degree murder. I read the trial judge as indicating that the appellant waited outside of the bar to “avenge” the “disrespect” he had suffered at Mr. Batisse’s hands in the bar. When Mr. Batisse emerged and continued to treat the appellant with disdain, the appellant decided to kill him. He pulled out his gun and fired four times from close range, striking Mr. Batisse in the chest twice. I take this to be the basis for the trial judge’s description of the murder as an “execution”.

[68] The sentence imposed by the trial judge is not out of line with sentences imposed in similar cases involving youthful offenders convicted of second degree murder: see Danvers, supra; R. v. Stewart, 2014 ONCA 70, aff’g, 2008 CanLII 70846 (ON SC), [2008] O.J. No. 5449. I cannot say that the sentence is manifestly excessive.

[69] I would dismiss the sentence appeal.

Released: “DD” “AUG 28 2015”

“Doherty J.A.”

“I agree G.R. Strathy C.J.O.”

“I agree Eileen E. Gillese J.A.”