COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hope, 2016 ONCA 623

DATE: 20160812

DOCKET: C57835

Watt, Epstein and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Hope

Appellant

Melanie Webb, for the appellant

Lucy Cecchetto, for the respondent

Heard: March 21, 2016

On appeal from the convictions entered on March 8, 2013 and the sentence imposed on October 4, 2013 by Justice C.A. Tucker of the Superior Court of Justice, sitting with a jury.

Epstein J.A.:

[1] On October 4, 2009, the appellant attended the birthday party of a three-year-old girl. The appellant carried a loaded concealed handgun – for protection. Tyrone Johnston, another guest at the party, confronted the appellant in the garage of the home where the celebration was taking place. The men indicated to each other that each was carrying a gun. Johnston left the party briefly and upon his return threatened to kill the appellant (the “garage incident”).

[2] Another guest at the party, Dorivaldo Decastro, intervened and took Johnston out onto the street.

[3] After a short interval, the appellant followed Johnston to the street. He testified that he left the garage and went out to the street in order to calm things down with Johnston. However, the clash between the two men continued. Johnston screamed at the appellant that he would kill him and his sister. According to the appellant, Johnston moved his hand toward his waist – an action that the appellant interpreted as Johnston’s reaching for his gun – and charged at him. The appellant pulled out his gun, closed his eyes and fired six shots. Three hit Johnston in the back (the “street incident”).

[4] Johnston ran to a nearby home and collapsed. He was pronounced dead at the scene.

[5] The appellant was charged with first degree murder, using a firearm while committing an indictable offence, and possessing a prohibited weapon without a lawful excuse. He pleaded guilty to the latter charge.

[6] At trial, the Crown’s theory was that when the appellant was in the garage he made up his mind to kill Johnston. The appellant went out to the street and followed through with this plan by shooting Johnston in the back.

[7] The appellant admitted that he killed Johnston. His primary defence was that he shot Johnston in self-defence.

[8] The jury convicted the appellant of second degree murder and of using a firearm while committing an indictable offence.

[9] The appellant appeals those two convictions and the length of his sentence. He argues that the trial judge made a number of mistakes, primarily in his instructions to the jury on the issue of self-defence. He also says that the sentence is excessive.

[10] For the reasons that follow, I would allow the appeal from the convictions under appeal, set them aside and order a new trial. In the circumstances, I do not reach the sentence appeal.

THE BACKGROUND FACTS

[11] It is useful to review various aspects of the evidence to give context to the issue on which this appeal turns – the adequacy of the jury instructions concerning self-defence. Much of this evidence came through the testimony of the appellant.

The Previous Dealings between the Appellant and Johnston

[12] The birthday party took place in a residential complex. The appellant’s sister, Sierra Monture, occupied Unit 14 of the complex with her boyfriend, Decastro. Out of concern about what he perceived to be his sister’s unsafe lifestyle with Decastro, the appellant purchased an illegal gun several months before the party.

[13] Johnston lived in Unit 12 of the complex. The appellant had previously met Johnston through Correll Slawter. Slawter told the appellant that Johnston was a gang member. If anyone wanted to “mess with” Johnston, they had better have a gun. The appellant worried about his sister’s living two doors down from Johnston especially since Decastro had said that Johnston was known to play around with guns.

[14] The appellant and Johnston had a couple of minor disputes prior to the day of the party.

The Party

[15] The appellant learned about the birthday party that Ike Ume, who lived in Unit 19, was hosting for his young daughter. The appellant knew that the guests would include Decastro and Johnston. The appellant decided to attend the party because his sister and Decastro would be going and he wanted to maintain good relations. Given the type of people who would be at the party, the appellant decided to take his gun with him.

[16] The men who attended the event congregated in the garage of the home where the party was taking place. The appellant observed Johnston yelling at another guest, Shilton Barros. Barros told people that Johnston had threatened to shoot him in the head. Eventually Barros was forced to leave the party.

The Two Assaults

1. The Garage Incident

[17] The appellant testified that after Barros left, Johnston confronted him and challenged him by asking, “You good?” The appellant said “yes”, and Johnston replied, “Well, I’m always good.” The appellant explained that through this exchange each man made it clear he was carrying a gun. In fact, Johnston’s response meant that he always had a gun with him.

[18] According to the appellant Johnston’s aggression against him continued to escalate. Johnston told the appellant he was going to kill him. He made gun signs with his hand. The appellant asked Johnston what his problem was and told Johnston that he did not have a problem with him. The appellant, referring to an earlier dispute, indicated to Johnston that “[w]e squashed that beef.” Johnston replied that he did not care, and said “I’ll kill you,” and “It is what it is.”

[19] At one point, Johnston moved towards the appellant. Other men had to intervene to pull him away. The appellant testified that he was frightened and believed that Johnston intended to cause him serious harm.

[20] Decastro took Johnston to the street. Several minutes later, the appellant left the party and joined the two men.

2. The Street Incident

[21] The appellant testified that he decided to go out onto the street and try to diffuse the situation with Johnston in order to protect his sister from the consequences of future problems with Johnston. The appellant felt that leaving the garage, either through the front door or by entering Unit 19 and locking the door, and then calling the police might solve the immediate issue but would make things worse in the long-run since Johnston and his associates would likely retaliate against him and his sister. The appellant felt that waiting in the garage was not a solution, because Johnston would still be waiting for the appellant, whenever he left.

[22] As a precaution, before leaving the garage the appellant cocked his gun and placed it back in his waistband.

[23] When the appellant came outside, Johnston was standing with Decastro in the roadway of the complex in the area of Unit 13. The appellant walked toward the two men. Johnston screamed things such as “I’ll kill you and your sister.” The appellant responded with “What’s your problem?” The appellant again attempted to assure Johnston that he had no problem with him.

[24] The appellant and Johnston stood face to face. Johnston suddenly put his hand toward his waistband and charged the appellant. The appellant testified that he believed Johnston was taking out his gun. Fearing for his life, the appellant shoved Johnston, went for his gun, closed his eyes and pulled the trigger. He closed his eyes again, took a couple steps forward and shot again.

[25] The appellant denied pointing his gun at Johnston. He said “I didn’t aim it at him. [It was] the fear of the moment.” The appellant explained Johnston’s having been shot in the back as being the result of the shove. The appellant denied chasing Johnston before firing the first shot.

[26] According to the appellant, after the sixth shot he opened his eyes and saw Johnston running towards Unit 12. The appellant turned and fled. In shock, he discarded the gun, went into a bush in a nearby field and cried. He later found out that Johnston had died.

[27] Decastro’s testimony from the preliminary inquiry was read in at trial. He could not remember everything that the appellant and Johnston had said on the road, but recalled that the appellant had said “We already squashed the beef we had before”. Johnston had responded “So what”. Johnston then aggressively moved towards the appellant with his hands in his pockets. Decastro heard gunshots and ran.

[28] Chris Herriott lived in the complex close to Ume’s unit. He was working in his garage and heard the man living in Unit 12 (Johnston) “cursing and swearing” at someone at the party. The man from Unit 14 (Decastro) was trying to lead him away. Sometime later, he heard the same man from Unit 12 challenging someone from the party to “[c]ome out and fight like a man.” Decastro came back over and the two men went into Unit 14.

[29] Herriott testified that he then heard Johnston “yelling and screaming” at someone from the party, for a third time. He “knew things were getting bad”, then heard a gunshot. He looked out his garage window and saw a person running in front of Unit 10 with a gun in his hand and saw the muzzle flash. The man was heading in the direction of Unit 12. Herriott immediately called the police.

[30] Police and expert evidence given at trial established that six shots had been fired, three of which had struck Johnston in his back. It was possible that Johnston could have been running, turning away, taking something out of his pocket or raising his arm when he was shot. Bullet holes and ejected casings were found in the vicinity and in the entrance area of Unit 12. No gun, other than the appellant’s, was discovered at the scene. A “butterfly knife” was found in Johnston’s pocket.

The Parties’ Positions at Trial

[31] At its core, the Crown’s position at trial was that the appellant was guilty of first degree murder. Following the garage incident, the appellant decided to put an end to his dispute with Johnston by following Johnston into the street and putting an end to Johnston himself. With this specific intent in mind, the appellant cocked his loaded gun, put it in his waistband and went out to the street. There, he confronted Johnston, pulled out his gun and, as Johnston turned and fled, the appellant shot Johnston in the back.

[32] The Crown argued that the appellant’s evidence that he went for his gun when Johnston went for his, was not to be believed. Johnston had no gun on him. He was found to be armed only with a butterfly knife.

[33] The appellant’s primary position was that he had shot Johnston in self-defence.

[34] In the garage Johnston had threatened to kill the appellant. The appellant was unsuccessful in his attempts to diffuse the situation between him and Johnston and so Decastro took Johnston out of the garage and onto the street. The appellant conceded that while he was in the garage he had a number of available options to escape Johnston’s aggression. However, he rejected them as he had reason to continue to try to de-escalate the dispute with Johnston – mainly to protect his sister. To this end he went out to the street.

[35] Once the two men were facing each other in the street, Johnston approached the appellant and threatened him. Johnston then charged at the appellant and moved in a manner that caused the appellant to believe Johnston was pulling out his gun. It was in response to those actions that the appellant drew his gun from his waistband, closed his eyes and fired.

THE ISSUES ON APPEAL

[36] On the conviction appeal the appellant alleges a number of errors including various deficiencies in the trial judge’s final instructions to the jury. I would summarize the alleged errors as concerning:

i. whether the trial judge erred in instructing the jury on self-defence;

ii. whether the trial judge erred in leaving inadmissible opinion evidence with the jury;

iii. whether the trial judge erred in instructing the jury on the intent required for murder; and,

iv. whether the trial judge erred by failing to leave the defence of provocation with the jury.

ISSUE ONE: Did the Trial Judge Err in Instructing the Jury on Self-defence?

[37] The appellant put forward three arguments concerning self-defence:

1. The jury instructions failed to assist the jury as to the relevance of the garage incident, particularly in relation to the issue of retreat and in light of the Crown’s closing address.

2. The trial judge reversed the burden of proof.

3. The trial judge failed to provide a Baxter[^1] instruction.

[38] As to the availability of the proviso, the appellant argues that self-defence was the key defence at trial. The appellant gave evidence which, if believed, was capable of establishing that he acted in self-defence when he shot Johnston. It therefore cannot be assumed that the jury would have decided the same way had the jury received proper instructions relating to the defence of self-defence.

Analysis

1. Did the Jury Instructions Fail to Sufficiently Assist the Jury as to the Relevance of the Garage Incident, Particularly in Relation to the Issue of Retreat?

(a) Background

[39] Recall that aside from some preliminary jostling, there were two main altercations between the appellant and Johnston.

[40] The first – the garage incident – took place in the following circumstances. The appellant knew Johnston to be a gang member and a hot-head. Johnston’s aggression had forced Barros to leave the party. Johnston approached the appellant, indicated he had a gun and threatened to kill him. Decastro was forced to diffuse the situation by getting Johnston out of the garage.

[41] The second – the street incident – took place a short time later. According to the appellant, Johnston threatened to kill him and his sister, and then charged him as he put his hand to his waist – an action that the appellant interpreted as Johnston’s going for his gun.

i. The Crown’s Submissions

[42] In his closing address to the jury, Crown counsel referred to the interval between the garage incident and the street incident as “the sequence of events”. The Crown reiterated a number of times that it was important for the jury, when assessing self-defence, to consider the entirety of the sequence of events:

I expect Your Honour will tell you that you must consider these three elements that I’ve just gone through for self-defence and you must consider those three elements throughout the entire sequence of events. You don’t consider the three elements just at the end of the sequence of events, much as you don’t consider the three elements just at the start of the sequence of events. You have to consider the three elements throughout the sequence of events. And why is that important? It’s important, I respectfully submit to you, because you always have to bear in mind that self-defence is a defence of last resort. So that if you, the jury, determine when considering the entire sequence of events, that reasonably an alternative other than shooting [Johnston] existed for [the appellant], then [the appellant] can’t rely on self-defence. [Emphasis added.]

[43] Later in his address, Crown counsel reminded the jury of suggestions he had put to the appellant in cross-examination as to options available to him while he was still in the garage:

I suggested other alternatives that I said were available to him while he remained in the garage. I suggested he could have used his cell phone to call the police. I suggested he could have stayed in the garage. I suggested he could have had [Ume] close the garage door. I suggested that he could have gone into Unit 19 and called the police. He could have gone into Unit 19 and out the back door. And I suggested that he could have gone out of the garage, the big garage door, turned right, and left the complex….

You have to ask yourself, when in the garage did the appellant have another reasonable alternative. When in the garage, was there a reasonable alternative other than the one chosen by [the appellant]? [Emphasis added.]

[44] Crown counsel then made reference to options potentially available to the appellant after he had left the garage but prior to Johnston’s “coming at him”:

[Decastro] testified that he turned to [the appellant] and said: “Yo Rob, just go away. Go away.” I’m going to pause for a moment and ask you – remember, you are to consider the whole sequence of events. And ask yourself, reasonably, did [the appellant] have another alternative at that point in the sequence. Could he have, acting reasonably, turned and left? Could he have acted reasonably, gone over to Unit 14, gone inside and locked the door?

[45] Crown counsel made the following point as to alternatives potentially available to the appellant during the street incident:

If you find as a fact that [the appellant] pulled out his gun and [Johnston] turned and fled into Unit 12, you have to ask yourself, did [the appellant] have a reasonable alternative other than shooting [Johnston]? If [Johnston] turned and fled into Unit 12, would it be reasonable to turn around, go into Unit 14 and lock the door? That’s for you to consider. Would it be reasonable if [Johnston] turned and fled into Unit 12, to simply turn around and leave the complex? That’s for you to consider.

[46] At the conclusion of the Crown’s submissions, defence counsel strongly objected to the Crown’s closing address relating to the relevance of the garage incident and the appellant’s opportunity to retreat after Johnston assaulted him in the garage. In her lengthy submissions defence counsel argued that in the portions of the Crown’s argument noted above, Crown counsel effectively told the jury that the appellant could not avail himself of the defence of self-defence if, after the garage incident occurred, the jury found that the appellant had other alternatives available to him.

[47] The trial judge did not accept the defence submissions. She interpreted the Crown’s closing as properly telling the jury to look at the circumstances of that day in assessing whether the appellant’s conduct was reasonable. She refused to provide a correcting instruction.

ii. The Trial Judge’s Instructions

[48] The trial judge did not specifically tell the jury that the appellant was not required to retreat earlier in the sequence of events; namely, after the garage incident. She did, however, make several statements that suggested the point in time at which the appellant acted in self-defence was during the street incident. In referring to the first prong of self-defence, the trial judge stated:

[The appellant] testified that [Johnston], in addition to the threats, moved forward towards him and then made a motion with his left hand while pulling a gun. [Decastro] again, in his evidence, stated that [Johnston] had moved towards [the appellant]. I would suggest to you that [Johnston’s] actions at that point could be considered as an unlawful assault upon [the appellant], but it is your decision to make based on the facts that you find. [Emphasis added.]

[49] When referring to the second prong of self-defence, she stated:

Did [the appellant] reasonably fear that [Johnston] would kill or seriously injure him? The question requires you to consider not only [the appellant’s] state of mind when he used force against [Johnston], but also what a reasonable person would fear in the same circumstances….

[The appellant] testified that [Johnston] not only was threatening his life but that of his sister, as he approached him where he stood with [Decastro]. His evidence is that [Johnston] moved toward him and with his left hand pulled a gun. He said he tried to push [Johnston] away from this action as he pulled his own gun and shot him. [Decastro] said in his evidence that [Johnston] had moved towards [the appellant]. [The appellant] said he thought he was going to die. It is at this point in time that you need to determine the reasonableness of [the appellant’s] belief, both subjectively from [the appellant’s] perspective and objectively from the perspective of the reasonable man, based upon your assessment of the entire sequence of events between the men and your assessment of the evidence as a whole. [Emphasis added.]

[50] In referring to the third prong of self-defence, the trial judge explained:

Did [the appellant] reasonably believe that he could not otherwise save himself from being killed or seriously injured by [Johnston]? This question requires you to consider not only [the appellant’s] state of mind when he used force against [Johnston], but also what a reasonable person would believe in the circumstances.

iii. The Questions and the Recharge

[51] During their deliberations, the jury submitted a number of questions. One question contained two requests pertaining to the issue of self-defence. The first was for the appellant’s testimony from the time Johnston threatened him in the garage until he left the residential complex. The second request was worded as follows: “In reference to the third element of self-defence, no other option to preserve his life, we would like to know when these options would start. What is the timeline – prior to the assault or after the assault.”

[52] The second question became the subject of considerable debate.

[53] The trial judge expressed confusion as to what was meant by “the assault”. Defence counsel indicated she assumed it was the street incident; Crown counsel expressed the view that it was the garage incident. The trial judge’s initial opinion was that it would be at the point in time when the assault in the street took place.

[54] Defence counsel submitted that in response to the second request, the trial judge should make it clear to the jury that the time to consider was when Johnston moved towards the appellant on the street. Crown counsel noted the prosecution’s position that an assault occurred in the garage. It was the trial judge’s view that she had told the jury that the reasonableness of the appellant’s belief that there was no other option to preserve his life was to be determined at the time of the assault in the street. Defence counsel again raised the point that the law did not require the appellant to retreat when he was in the garage, and argued that the question made it clear that the jury did not understand this.

[55] The trial judge ultimately determined that her initial instructions had accurately directed the jury on the issue of retreat and particularly the focus on the street incident. Accordingly, in response to the jury’s request for assistance on this point, the trial judge reread the portion of her charge on the third element of self-defence and the portion of the charge concerning the issue of mistaken belief. That recharge included the following statements:

Did [the appellant] reasonably believe that he could not otherwise save himself from being killed or seriously injured by [Johnston]? This question also requires you to consider not only [the appellant’s] state of mind when he used force against [Johnston], but also what a reasonable person would believe in the same circumstances….

If you are not satisfied beyond a reasonable doubt that [the appellant] did not honestly and reasonably believe that he could only save himself from death or serious injury by killing or seriously injuring [Johnston] at the time he reasonably believed [Johnston] pulled his gun on him, [the appellant] was not acting in lawful self-defence. [Emphasis added.]

[56] The jury was provided with no particularized assistance on the issue of the relevance of the appellant’s failure to take advantage of possible avenues of retreat, prior to the street incident.

(b) The Parties’ Positions

[57] The appellant submits that the Crown’s closing address suggested that the appellant was legally required to retreat following the garage incident. Otherwise, he could not rely on self-defence. Despite defence counsel’s request, the trial judge did not provide a correcting instruction. Compounding this error was the trial judge’s failure to adequately answer the jury’s question as to the relevance of the garage incident.

[58] The respondent does not agree that Crown counsel’s closing address contained such a suggestion. Rather, Crown counsel submitted, as he was entitled to, that the appellant decided to kill Johnston before leaving the garage, and he invited the jury to review the entire sequence of events in determining whether the appellant acted reasonably. Further, defence counsel was ultimately content with how the trial judge intended to instruct the jury.

(c) The Governing Principles

i. General Self-defence Provisions

[59] The self-defence provision applicable at the appellant’s trial was the former s. 34(2) of the Criminal Code, which stated:

34 (2) 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.

[60] In R. v. Craig, 2011 ONCA 142, 269 C.C.C. (3d) 61, at para. 33, Doherty J.A. described the three elements of the s. 34(2) defence as follows (referencing R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3):

1. An unlawful assault, or at least a reasonable belief by the accused that he or she was being assaulted;

2. A reasonable apprehension of risk of death or grievous bodily harm; and

3. A reasonable belief that it is not possible to preserve one’s self from harm except by killing the perpetrator of the assault.

[61] The elements of self-defence have both a subjective and an objective component: Craig, at para. 36.

ii. Retreat

[62] The concept of retreat is relevant to the second and third of the three elements of the s. 34(2) defence set out above. In R. v. Cain, 2011 ONCA 298, 278 C.C.C. (3d) 228, at para. 9, this court explained the relevance of the issue of retreat to a self-defence claim made under s. 34(2):

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 properly 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]. [Citations omitted.]

[63] The issue of retreat is also relevant when the Crown takes the position that the individual claiming self-defence had, from the start of the interaction, intended to harm the deceased: see e.g. Cain, at paras. 10, 15.

[64] Where Crown counsel makes submissions to the effect that an individual is precluded from raising the defence of self-defence because he or she had failed to retreat at the start of a confrontation, or where there is a sufficient risk that the jury could have understood Crown counsel to be making that submission, a correcting instruction from the trial judge is required: Cain, at para. 11.

[65] However, the claim of self-defence will be fairly put to the jury where the jury instructions, read as a whole, make it clear that the jury’s task is to determine whether, at the time the accused used force against the victim, the accused reasonably believed he could not otherwise preserve himself from death or grievous bodily harm: R. v. Stewart, 2014 ONCA 70, 306 C.C.C. (3d) 269, at para 48.

iii. Jury Questions

[66] As I will explain, I have concluded that the trial judge’s instructions concerning self-defence left the jury confused specifically with respect to the issue of retreat. I come to this conclusion in large part due to the question the jury asked concerning this issue during deliberations. Therefore, a summary of the governing legal principles should include those that pertain to the significance of jury questions.

[67] In R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 759-60, the Supreme Court explained that “When a jury submits a question, it gives a clear indication of the problem the jury is having with a case. Those questions merit a full, careful and correct response. As well, the answer should remind the jury of its instructions given in the course of the main charge.”

[68] Similarly, in Pétel, at p. 15, the Supreme Court stated:

The importance of adequately answering questions put by the jury should be borne in mind. The question will generally relate to an important point in the jury’s reasoning, so that any error the judge may make in answering it becomes all the more damaging. It is often necessary to repeat certain aspects of the main charge in order to place the specific question in a more general context. [Citation omitted.]

[69] In R. v. T. (M.), 2012 ONCA 511, 289 C.C.C. (3d) 115, at paras. 114-116, Watt J.A. summarized the law on responses to jury questions as follows:

Jury questions indicate that at least some jurors are having a problem with an issue in the case. Jury questions merit a full, careful and correct response.

Recharges on issues presented by jury questions must be correct and comprehensive no matter how exemplary the original charge may have been. As a general rule, the correctness of the original charge cannot be summoned in forgiveness of a later error in a recharge on the very point on which the jury reports confusion and seeks clarification. Further, the more time that has elapsed between the main charge and the jury question, the more imperative it is that the recharge contain a correct and comprehensive response.

In some instances, for example where a written version of the original charge has not been provided to jurors and a jury question indicates a failure to recall the substance of the original charge, a repetition of the original instructions may be sufficient. On the other hand, where the judge has provided jurors with a written version of the charge, a juror question about a subject like the standard of proof may require something more than oral repetition of the charge already given. [Emphasis in original. Citations omitted.]

(d) Application of the Governing Principles

[70] Recall the theories advanced at trial. The theory of the Crown was that the appellant, just after the garage incident, formed the intent to kill Johnston. The theory of the defence was that the appellant shot Johnston on the street in self-defence.

[71] The events in the garage were potentially relevant to each of these theories.

[72] What took place in the context of the garage incident was relevant to the Crown’s theory that the appellant intended to kill Johnston when he (the appellant) joined Decastro and Johnston in the street. It provided the background against which the appellant formed the intent to murder Johnston. That the appellant failed to avail himself of available exits and instead confronted Johnston on the street, it could be argued, was evidence that the appellant, while in the garage, made up his mind to kill Johnston.

[73] The events in the garage were also relevant to the theory of the defence of self-defence. In the circumstances of this “sequence of events” the jury had to consider whether the appellant’s decision to shoot Johnston was his only reasonable option in response to Johnston’s actions when Johnston confronted him on the street. In answering this question, the jury was entitled to consider the surrounding events, including what happened in the garage, as it informed the appellant’s state of mind and actions during the street incident. It informed the alternatives reasonably available to the appellant at the moment he was on the street facing Johnston as Johnston (according to the appellant) moved toward him, threatened him and brought his hand to his waistband.

[74] Unfortunately, the trial judge’s instructions did not adequately equip the jury was not well-equipped to understand the relevance of the circumstances surrounding the garage incident and to properly apply them to the defence of self-defence.

[75] First, the Crown’s submissions on the issue were capable of misleading the jury on this point. I refer to the Crown’s submissions that if the jury determined, “considering the entire sequence of events, that reasonably an alternative other than shooting [Johnston] existed for [the appellant], then [the appellant] [couldn’t] rely on self-defence.” And, as set out above, Crown counsel suggested a number of alternatives available to the appellant prior to Johnston’s moving toward him, including retreat options open to the appellant while he was in the garage. I agree with the objection taken by defence counsel that these submissions could have left the jury with the impression that the appellant was precluded from raising the defence of self-defence because, immediately after the garage incident, he had not taken advantage of opportunities to save himself from harm.

[76] Notwithstanding these erroneous submissions, the trial judge did not give the corrective instruction she was asked to provide and, in my view, should have provided. See Cain, at para. 11.

[77] To make matters worse, the trial judge, in her instructions to the jury, did not clearly explain the potential ways in which the circumstances involving the garage incident might be relevant to their deliberations.

[78] This lack of clarity was made evident by the jury’s question set out above. The jury expressed uncertainty about how to consider the third branch of self-defence, particularly in relation to the period in time at which the appellant had to reasonably believe he could not otherwise save himself from death or grievous bodily harm. Although the meaning of “the assault” was never clarified,[^2] I conclude that the question demonstrates the jury’s confusion about the relevance of the garage incident – significantly of the appellant’s decision to follow Johnston to the street rather than leave the party or call the police – to the issue of whether the appellant reasonably believed that he could not otherwise save himself from death or grievous bodily harm when he was assaulted in the street.

[79] As noted above, the trial judge’s response to the jury’s question was to repeat the part of her charge on the third branch of self-defence, a charge that had left the jury confused the first time it was given. Although the recharge twice refers to the street incident, the majority of the recharge speaks generally about self-defence without reference to any particular point in time. Most importantly, it did not clarify the relevance of the garage incident to the jury’s analysis of self-defence.

[80] In my opinion, leaving the Crown’s uncorrected erroneous closing to one side, once the jury expressed its confusion as to the significance of the garage incident in assessing self-defence, it was incumbent on the trial judge to explain that significance. Her reiteration of a portion of her charge failed to do so. The jury was left inadequately instructed with respect to this aspect of the case – an aspect that was both complex and critical to the defence of self-defence.

2. Did the Trial Judge Err in her Instructions by Reversing the Burden of Proof in Relation to the Third Test for Self-Defence?

(a) The Jury Instructions

[81] In her charge to the jury on self-defence, the trial judge began by stating “Crown counsel must satisfy you beyond a reasonable doubt that the accused was not acting in lawful self-defence.”

[82] The trial judge then said the following about the burden of proof with respect to the third aspect of self-defence:

To decide this question, you should consider all of the circumstances of [the appellant’s] conduct. Take into account not only the nature of the act alleged but anything said about it at the time. If you are not satisfied beyond a reasonable doubt that [the appellant] honestly and reasonably believed that he could only save himself from death or serious injury by killing or seriously injuring [Johnston], [the appellant] was not acting in lawful self-defence. You must then return to the analysis [of] the essential elements of first degree murder which I will discuss below. If you are satisfied beyond a reasonable doubt that [the appellant] did honestly and reasonably believe that he could only save himself from death or serious injury by killing or seriously injuring [Johnston], [the appellant] was acting in lawful self-defence and you must find [the appellant] not guilty and your deliberation on both counts of the indictment would be over. [Emphasis added.]

[83] In the recharge, the trial judge again reviewed the issue of the burden of proof in relation to the third part of the test for self-defence:

To decide this question, you should consider all the circumstances of [the appellant’s] conduct. Take into account not only the nature of the act alleged but the things said at that time. If you are not satisfied beyond a reasonable doubt that [the appellant] did not honestly and reasonably believe that he could only save himself from death or serious injury by killing or seriously injuring [Johnston] at the time he reasonably believed [Johnston] pulled his gun on him, [the appellant] was not acting in lawful self-defence. You must then return to your analysis as to the essential elements of first degree murder, which I will discuss below.

If you are satisfied beyond a reasonable doubt that [the appellant] did honestly and reasonably believe that he could only save himself from death or serious injury by killing or seriously injuring [the appellant] [sic] – was acting in lawful self-defence and you must find [the appellant] not guilty and your deliberations on both counts of the indictment would be over. [Emphasis added.]

[84] The trial judge’s made additional references to the burden of proof in her initial instructions. At the beginning of the charge, she stated that “The person charged, being [the appellant], does not have to present evidence or prove anything in this case; in particular, that he is innocent of the crimes. From start to finish, it is Crown counsel who must prove [the appellant] guilty beyond a reasonable doubt. It is Crown counsel who must prove [the appellant’s] guilt beyond a reasonable doubt, not [the appellant] who must prove his innocence. You must find [the appellant] not guilty unless Crown counsel satisfies you beyond a reasonable doubt that he is guilty.” Second, the trial judge provided a W. (D.) instruction on two occasions. Finally, at the conclusion of the charge, the trial judge stated that “Every person charged with an offence is presumed to be innocent unless and until Crown counsel has proven that person’s guilt beyond a reasonable doubt.” She then reiterated the same paragraph on reasonable doubt from the beginning of the charge.

[85] No additional references were made to the burden of proof in the recharge.

(b) The Parties’ Positions

[86] The appellant submits that in these passages the trial judge clearly misstated the onus in relation to the appellant’s honest and reasonable belief that he could only save himself by killing or seriously injuring Johnston. Crown counsel fairly acknowledges these errors but submits that given that the trial judge correctly articulated the burden of proof in other parts of the charge, the jury would not have been misled that the burden rested on the Crown to satisfy the jury beyond a reasonable doubt that the defence of self-defence did not apply.

(c) The Governing Principles

[87] Once self-defence is left with the jury, the accused bears no burden to establish that he or she acted in self-defence. Rather, as the Supreme Court noted in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 39, “the jury must be told that the burden of proof in relation to this defence is on the Crown, who must prove beyond a reasonable doubt that the defence does not apply.”

[88] Where the trial judge errs in instructing the jury on the burden of proof, “the fact that the trial judge correctly instructed on that issue elsewhere in the charge is a strong indication that the jury were not left in doubt as to the burden resting on the Crown”: W. (D.), at p. 758. However, as noted above, errors made in answering a question from the jury become all the more damaging given that questions tend to relate to important parts in the jury’s reasoning: Pétel, at p. 15. Indeed, in W. (D.), the Supreme Court noted that, had the reversal of the burden of proof occurred in the course of a response to a question from the jury, a new trial would have had to have been ordered: p. 760.

(d) Application of Governing Principles

[89] Had the reversal of the burden of proof occurred only in the main charge, where the errors were cushioned on either side by several proper statements of the burden of proof, I may have been comfortable saying that the jury would have understood the Crown’s onus. Here, however, the error was repeated in response to a question from the jury. While the question itself did not directly touch on the burden of proof, the trial judge’s response to that question was capable of confusing the jury as to the party that bore the burden of proof.

3. Did the Trial Judge Err by Failing to Give a Baxter Instruction?

(a) The Jury Instructions

[90] The charge to the jury did not contain a specific Baxter instruction.

(b) The Parties’ Positions

[91] The appellant argues that in this case it was an error for the trial judge to have failed to include a Baxter instruction in her charge to the jury. A Baxter instruction was necessary because it was critical for the jury to understand that the appellant was not required to engage in detached reflection, as the Crown suggested he should have done in the garage, when he was faced with a reasonably apprehended attack involving a gun.

[92] The Crown submits that a nicety or Baxter instruction is not a prescribed incantation. The real question is whether the charge conveyed the requirement of an honest and reasonable belief by the accused that his use of force was necessary. The Crown argues that the trial judge, in her instructions, captured the essence of the Baxter instruction by telling the jury that the appellant was not required to exactly measure his necessary defensive action. The Crown relies on the case of R. v. Krasniqi, 2012 ONCA 561, 291 C.C.C. (3d) 236, in which this court dismissed an appeal involving a jury charge with exactly the same wording as the trial judge’s charge. The Crown contends that the jury would have understood from the charge as a whole that the appellant only needed to honestly believe that his actions were necessary in the circumstances. Alternatively, says the Crown, no substantial wrong occurred and the absence of a Baxter instruction was mitigated by the rest of the charge.

(c) The Governing Principles

[93] A Baxter instruction is required to convey that a person responding to a reasonably apprehended attack cannot be expected to “weigh to a nicety, the exact measure of defensive action”: Baxter, at p. 111; Krasniqi, at para. 95. As this court explained in Krasniqi, at para. 96, it is the message in the Baxter instruction which must be brought home to the jury rather than a specific incantation. Jurisprudence has made it clear that, standing on its own, a failure to give a Baxter instruction is not fatal to a charge on self-defence: see e.g. Krasniqi, at paras. 96-99: R. v. Scotney, 2011 ONCA 251, 277 C.C.C. (3d) 186, at paras. 34-38.

(d) Application of the Governing Principles

[94] In this case, while I would not find that the trial judge’s instructions were irreparably flawed due to the lack of this aspect of the charge, its absence does contribute to my assessment of the overall adequacy of the charge as it pertained to self-defence.

Summary of the Adequacy of the Instructions Regarding Self-Defence

[95] In my view, the trial judge erred by not properly instructing the jury on the issue of self-defence, in three respects:

1. She failed to provide a correcting instruction following Crown counsel’s argument that if the jury found that after the garage incident the appellant did not avail himself of reasonable opportunities to retreat, self-defence was not available to him. The trial judge also failed to assist the jury in its obvious confusion about the relevance of the garage incident to the defence of self-defence.

2. On a number of occasions, including in answer to a question, the trial judge reversed the burden of proof.

3. Finally, the trial judge should have provided but did not provide the jury with a Baxter instruction.

[96] In the light of these errors in the trial judge’s instructions on the central issue in this case – self-defence – I am not satisfied that the jury was provided the assistance necessary to assess the appellant’s defence of self-defence.

[97] The respondent submits that, given the strength of the Crown’s case, the proviso ought to apply. I disagree. Self-defence was the key defence at trial. There was evidence given which, if believed, was capable of establishing that the appellant acted in self-defence when he shot Johnston. It therefore cannot be said that the jury would have reached the same conclusion had they received proper instructions on the issue of self-defence.

[98] I would therefore allow the appeal on this issue.

THE OTHER GROUNDS OF APPEAL

[99] Given I would allow the appeal on the ground that the trial judge erred in instructing the jury on self-defence, I do not intend to deal with the other grounds of appeal, expect by way of brief comment.

[100] The appellant contends that the expert evidence of two witnesses relating to the relevance of where the gunshot casings were found at the scene of the killing was inadmissible and the trial judge ought to have instructed the jury to give no weight to it. Even if the evidence was admissible, it ought to have been subject to a clear and forceful caution about its limitations.

[101] The authorities have made it clear that experts should be properly qualified in relation to all areas in which the expert proposes to testify. A trial judge’s obligation to properly control the reception of expert evidence does not end at the qualification stage. The trial judge’s role is to limit the evidence to areas properly admitted – objection or no objection. The evidence of experts must be confined to the witness’s field of expertise.

[102] With respect to the trial judge’s instructions concerning the intent for murder as opposed to manslaughter, the appellant submits that the trial judge erred by failing to tell the jury that the appellant’s post-offence conduct could not assist them in determining intent and failed to provide a “rolled-up” charge. In relation to this ground of appeal I say only that I would not wish to be taken as approving the instructions the appellant challenged in this ground of appeal.

[103] Finally, concerning the defence of provocation, the appellant argues that Johnston provoked the appellant when he threatened to kill him and his sister. The sudden reaction was the appellant’s pulling the gun and shooting before having an opportunity to cool down. The appellant submits that there was an air of reality to provocation and the trial judge erred by not leaving it with the jury. Self-defence and provocation are not necessarily incompatible. The fact that the appellant denied acting out of anger and testified that he was concerned about his safety and therefore went for his weapon does not deprive provocation of an air of reality.

[104] In my view it would not be appropriate to comment on the issue of provocation as whether that issue goes to the jury in the next trial and what instructions are appropriate to give depends on the evidence adduced at that trial.

DISPOSITION

[105] Based on this analysis, I would allow the appeal, set aside the convictions for second-degree murder and using a firearm while committing an indictable offence, and order a new trial.

Released: August 12, 2016 (DW)

“Gloria Epstein J.A.”

“I agree David Watt J.A.”

“I agree M. Tulloch J.A.”

[^1]: R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.).

[^2]: Unfortunately, the trial judge did not ask the jury to clarify which assault they meant when they asked whether they had to consider the appellant’s opportunity to retreat “prior to the assault or after the assault” - an option that was discussed.