COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Grant, 2016 ONCA 639
DATE: 20160823
DOCKET: C58744 and C59080
Laskin, Cronk and Juriansz JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Anthony Grant and Devon Vivian
Appellants
Delmar Doucette and Paul J.I. Alexander, for the appellant Anthony Grant
Lance Beechener and Gabriel Gross-Stein, for the appellant Devon Vivian
Leslie Paine and Melissa Adams, for the respondent
Heard: February 8, 2016
On appeal from the convictions entered on December 11, 2013 and the sentences imposed on December 17, 2013 by Justice E.G. Ewaschuk of the Superior Court of Justice, sitting with a jury.
Laskin J.A.:
A. Introduction
[1] These appeals arise out of a drive-by shooting on a residential street in the north-west end of Toronto.
[2] On a June afternoon in 2007, the appellants, Anthony Grant and Devon Vivian, went to Dr. Flea’s Flea Market to shop. While there, Vivian was robbed by Jose Saez. Saez pulled a pendant from Vivian’s neck and then left the market with his friend Mustafa Omar. When Grant and Vivian followed them, Saez and Omar pulled out handguns, and the appellants retreated into the market.
[3] Seconds later, Grant was robbed when Frank Akwaboah broke a chain off his neck. Akwaboah was with his friend Matthew Dale. This robbery precipitated a fight among the four men, in which Grant was punched in the face several times. Security personnel broke up the fight. Neither Grant nor Vivian knew any of the men who had robbed them.
[4] After the two robberies, Grant and Vivian left Dr. Flea’s and headed home in Grant’s Mercedes-Benz SUV. About fifteen minutes later, they were driving in the center lane of Kipling Avenue, going south. Vivian was driving and Grant was in the front passenger seat. A Honda pulled up beside them in the curb lane. The Honda was driven by McFrinn Paddy, and in it were the four men who had robbed Grant and Vivian at the market.
[5] Saez taunted Grant and Vivian by holding Vivian’s stolen pendant out the rear driver side window. The Honda then abruptly turned right onto John Garland Boulevard. As it did, Omar flashed a gun out the rear passenger side window. Wanting his pendant back and angered by the taunts, Vivian also turned right onto John Garland Boulevard and followed the Honda. He accelerated the Mercedes and pulled up alongside the Honda. Grant pulled out a handgun from the glove compartment of his car and fired 13 shots at the Honda. Saez was shot six times and was killed. Paddy, Omar and Dale were wounded. The appellants sped away from the scene and three days later fled to Jamaica. Both were eventually arrested and returned to Toronto. At the time of the shooting, Grant was 21 years old and Vivian was 20.
[6] The appellants were charged with first degree murder. They were first tried in 2010. Neither testified, and neither raised the defence of self-defence. The main issue at trial was identity. The jury found both Grant and Vivian guilty of first degree murder and four counts of attempted murder. On appeal, this court set aside their convictions and ordered a new trial on the ground that the trial judge erred in an exhortation he gave to the jury: R. v. Vivian, 2012 ONCA 324, 290 C.C.C. (3d) 73.
[7] The retrial took place in late 2013 and lasted 25 days. The Crown’s theory was that the killing of Saez was planned and deliberate, motivated by the appellants’ desire for revenge. Both Grant and Vivian testified. They maintained that they had been hunted by the men in the Honda. Grant claimed that as soon as he saw Omar flash his gun, he feared he was going to be killed. He fired at the Honda to save his own life and the life of his friend Vivian.
[8] Grant and Vivian were acquitted of first degree murder but found guilty of second degree murder. Grant was also convicted of four counts of attempted murder, and Vivian was also convicted of four counts of aggravated assault. On their mandatory life sentences for second degree murder, the trial judge imposed a period of parole ineligibility of 18 years for Grant and 13 years for Vivian. On Grant’s convictions for attempted murder, the trial judge imposed a life sentence. On Vivian’s convictions for aggravated assault, the trial judge imposed a sentence of 14 years.
[9] Grant and Vivian appeal both their convictions and their sentences. For the reasons that follow, I would dismiss the conviction appeals, but allow the sentence appeals and reduce all the sentences imposed by the trial judge.
B. The issues on the conviction appeals
[10] Grant and Vivian raise the following eight issues on their conviction appeals:
1 Did the trial judge err by ordering static triers to decide the challenges for cause?
2 Did the trial judge err by refusing to leave self-defence with the jury?
3 Did the trial judge err by refusing to leave provocation with the jury?
4 Did the trial judge err in his instructions on reasonable doubt?
5 Did the trial judge err in his W.(D.) instruction?
6 Did the trial judge make comments that gave rise to a reasonable apprehension of bias?
7 Did the trial judge adequately caution the jury on Paddy’s preliminary inquiry evidence?
8 Did the trial judge err by refusing to admit evidence about the gang affiliations of some of the men in the Honda?
C. The conviction appeals
(1) Did the trial judge err by ordering static triers to decide the challenges for cause?
(a) Overview
[11] Before 2008, challenges for cause to the impartiality of prospective jurors in a criminal trial were decided only by “rotating” triers. The two jurors last sworn – or if no juror had been sworn, two persons appointed by the court – decided whether the next prospective juror was impartial. Trial judges had a “common law discretion” or an “inherent jurisdiction” to control the jury selection process: R. v. Moore-McFarlane(2001), 56 O.R. (3d) 737 (C.A.), at para. 85; R. v. Noureddine, 2015 ONCA 770, 128 O.R. (3d) 23, at para. 38. Trial judges used their discretion to exclude prospective (or unsworn jurors) from the courtroom during the challenge proceedings to promote the impartiality of the jury selected to try the case.
[12] In 2008, Parliament amended the jury selection provisions of the Criminal Code, R.S.C. 1985, c. C-46, by adding a second method for deciding challenges for cause on the ground of partiality (S.C. 2008, c. 18, s. 26). A trial judge may exclude all jurors, sworn and unsworn, from the courtroom during the challenge for cause proceedings to preserve the jury’s impartiality. Two triers, appointed by the trial judge, then decide all the challenges for cause. These two triers, called “static” triers, do not become part of the jury that decides the case. A trial judge can order the exclusion of all jurors from the courtroom and appoint static triers only on the application of an accused. Absent an application by an accused, challenges for cause on the ground of partiality are decided by the traditional method, by the use of rotating triers. Recently, in Noureddine, this court held that where a trial judge appoints static triers absent an application by an accused, the jury selected is improperly constituted and any convictions it renders must be quashed.
[13] Following the 2008 amendment, experienced trial judges conducting jury trials in the Ontario Superior Court have disagreed on whether they still had discretion or inherent jurisdiction to exclude prospective or unsworn jurors from the courtroom when rotating triers were used to decide challenges for cause based on alleged partiality. Some trial judges have held that they continue to have this discretion or inherent jurisdiction. Others have held that it had been eliminated by the 2008 amendment. Their disagreement falls to be resolved in the present appeal.
[14] During the jury selection proceedings, Vivian and Grant brought a race-based challenge for cause – a challenge to each prospective juror’s presumed impartiality. They asked for the exclusion of the unsworn jurors from the courtroom during the challenge for cause proceedings. They did not initially ask for an order that the sworn jurors be excluded. In other words, they asked that the challenges for cause be determined by rotating triers and that the trial judge exercise his discretion to exclude the prospective or unsworn jurors from the courtroom during the challenge proceedings.
[15] The trial judge appeared to recognize that he had this discretion, but he did not grant the order the appellants sought. Instead, after a dialogue with defence counsel, he asked whether they wanted rotating or static triers. They replied: “if… the Court does not want to exercise discretion to allow rotating triers and the jury out, then we’ll take the static triers.”
[16] The appellants contend that the jury, which was selected after the challenges for cause were determined by static triers, was improperly constituted. On this ground alone, they say their convictions must be quashed. In support of their contention, they make two submissions. First, the trial judge either refused to recognize he had discretion to have rotating triers, yet exclude the prospective or unsworn jurors from the courtroom during the challenge for cause proceedings, or he erred by refusing to exercise that discretion. Second, as the defence made no application for the exclusion of unsworn and sworn jurors, the trial judge’s appointment of static triers was contrary to the 2008 Criminal Code amendments and was improper.
[17] The Crown’s position is threefold. First, trial judges no longer have discretion to make the order the appellants initially sought: exclusion of unsworn jurors together with rotating triers. Second, if that discretion still exists, the trial judge did not err in refusing to exercise it because the appellants gave him no reason to do so. And his refusal is entitled to deference on appeal. Third, by agreeing to static triers, the appellants, in substance, made an application for the exclusion of all jurors, sworn and unsworn, during the challenge proceedings. Thus the Crown contends, the jury was properly constituted.
[18] For reasons I will discuss, I have concluded as follows:
• Trial judges still have discretion to exclude unsworn but not sworn jurors from the courtroom during challenges for cause on the ground of partiality. The 2008 amendment did not oust that discretion expressly or by necessary implication.
• The trial judge recognized that he had this discretion and did not err in refusing to exercise it because the appellants gave him no good reason for doing so.
• The appellants’ decision to choose to have static triers should be treated as an application under s. 640(2.1) to exclude both unsworn and sworn jurors from the courtroom during the challenge for cause proceedings.
[19] Thus, in my opinion, the jury was properly constituted. I would not give effect to this ground of appeal.
(b) Rotating and static triers
[20] Sections 640(2), (2.1) and (2.2) provide the methods for deciding challenges for cause (except a challenge because the name of the juror did not appear on the panel):
640(2) If the ground of a challenge is one that is not mentioned in subsection (1) and no order has been made under subsection (2.1), the two jurors who were last sworn – or, if no jurors have been sworn, two persons present who are appointed by the court for the purpose – shall be sworn to determine whether the ground of challenge is true.
(2.1) If the challenge is for cause and if the ground of the challenge is one that is not mentioned in subsection (1), on the application of the accused, the court may order the exclusion of all jurors – sworn and unsworn – from the court room until it is determined whether the ground of challenge is true, if the court is of the opinion that such an order is necessary to preserve the impartiality of the jurors.
(2.2) If an order is made under subsection (2.1), two unsworn jurors, who are then exempt from the order, or two persons present who are appointed by the court for that purpose, shall be sworn to determine whether the ground of challenge is true. Those persons so appointed shall exercise their duties until 12 jurors – or 13 or 14 jurors, as the case may be, if the judge makes an order under subsection 631(2.2) – and any alternate jurors are sworn.
[21] Section 640(2) provides for rotating triers. The 2008 amendment added ss. 640(2.1) and (2.2). The added provisions allow for static triers. The application of these various provisions and the reasons for rotating and static triers are extensively discussed by my colleague Doherty J.A. in Noureddine and by Code J. in R. v. Jaser, 2014 ONSC 7528. It is unnecessary to repeat their discussion here. I simply note the following points from these two cases relevant to this ground of appeal.
• Absent an accused’s application to exclude unsworn and sworn jurors, an accused has the statutory right to have challenges for cause, including challenges for alleged partiality, determined by rotating triers.
• Static triers will be used only if the accused makes an application to exclude unsworn and sworn jurors from the courtroom during the challenges for cause, and the trial judge determines that their exclusion is necessary to preserve the jury’s impartiality.
• If the trial judge makes an order excluding all unsworn and sworn jurors, then rotating triers cannot be used because sworn jurors cannot both be excluded during the challenge proceedings and act as triers.
• Rotating triers are members of the jury and if rotating triers are used, each juror (except the last juror chosen) has a role in selecting the other jurors. Static triers are appointed by the trial judge and do not become members of the jury.
• Using rotating triers benefits the process of selecting the jury in two ways: by avoiding the risk the process could be tainted by a single static juror who does not properly assess the partiality of prospective jurors; and by promoting a sense of responsibility in individual jurors and a sense of cohesiveness in the jury chosen. These potential benefits are particularly important to the accused.
• On the other hand, if rotating triers are used, the sworn jurors could be tainted by the answers to a challenge for cause given by a prospective juror; if static triers are used, none of the members of the jury can be tainted by answers given by any other prospective juror.
• Using static triers is likely to be more efficient than using rotating triers as static triers need only be instructed once on their duties.
(c) The trial judge’s discretion to exclude unsworn jurors
[22] Before the 2008 amendment permitting static triers, trial judges unquestionably had discretion to exclude unsworn jurors from the courtroom during challenges for cause on the ground of partiality. Rotating triers would hear the challenges and prospective jurors would be brought into the courtroom one at a time. In Moore-McFarlane, which was decided well before the amendment, Charron J.A. affirmed the existence of this discretion and noted that the trial judge’s discretion to exclude unsworn jurors was entitled to deference on appeal, at para. 85:
I do not agree with the appellants' contention that there should be any firm rule on whether the jury panel should be excluded from the courtroom during the challenge-for-cause process. This matter falls within the trial judge's discretion in controlling the challenge-for-cause process so as to prevent its abuse and ensure that the process is fair to the prospective juror as well as to the accused person. On appeal, the trial judge's decision is entitled to deference and should not be interfered with unless the appellant can demonstrate that the trial judge committed a clear error in principle in the exercise of his or her discretion, or that the trial judge's decision resulted in a miscarriage of justice. In this case, I am not persuaded that there is any cause to interfere with the trial judge's decision not to exclude the entire panel.
[23] It would appear that in some courts, excluding unsworn jurors “has routinely been done”: R. v. Sandham(2009), 248 C.C.C. (3d) 46 (Ont. S.C.), at para. 45; or was common, and “accords with common sense”: R. v. White, 2009 (Ont. S.C.), at para. 9. Other trial judges have required persuasive reasons to make the order. So, for example, in R. v. Tomlinson (Ont. S.C.), at para. 12, Archibald J. refused to exercise his discretion to exclude the unsworn jurors in part because “[t]he defence has not filed any sociological or psychological evidence in support of their argument that potential jurors might be negatively impacted by the jury selection process…”
[24] I pause here to note that trial judges have ascribed different labels to the source of their authority to exclude unsworn jurors. Some have referred to the authority as a common law discretion[^1]; others as the Superior Court’s inherent jurisdiction to ensure a trial is fair. Nothing turns on the label for the purpose of my analysis. As Charron J.A. referred to the authority as a discretion – presumably existing at common law – that is the label I will use from here on.
[25] Following the 2008 amendment, experienced and highly respected trial judges disagreed on whether this discretion continues to exist. On one side are the reasons of Dambrot J. in R. v. Riley (2009), (247) C.C.C. (3d) 517 (Ont. S.C.) and Code J. in Jaser. Both concluded that the 2008 amendment did away with the discretion. The only exclusion order available to trial judges was to exclude both unsworn and sworn jurors, in which case challenges would be heard and decided by static triers. Recently, in R. v. Omar, 2016 ONSC 2660, Molloy J. said that she agreed with Dambrot J. and Code J.
[26] On the other side of the debate are the reasons of Heeney J. in Sandham and Sproat J. in White. Both concluded that rotating triers could be used and trial judges still had discretion to exclude only unsworn jurors. Recently, in R. v. Daley, 2015 ONSC 7264, Fairburn J. held that she would use rotating triers and that she had “inherent jurisdiction” to exclude prospective jurors. In fact, at para. 43, she excluded “all prospective jurors and sworn jurors, except the sworn jurors who act as rotating triers”. Goodman J. made the same order in R. v. Millard, 2015 ONSC 6582.
[27] I expect other trial judges, whose views have not been reduced to a reported case, have different opinions on the debate. I will briefly examine the competing arguments put forward in the trial court before offering my own views.
[28] In Riley, the trial judge held that the accused could challenge prospective jurors for cause and ask a question concerning racism. The accused then asked that the jurors be excluded from the courtroom during the selection process. Dambrot J. agreed to the accused’s request but held that it could only be granted using static triers. In his view, jurors could only be excluded under s. 640(2.1) of the Code. His reasoning is summarized at para. 16:
With great respect to Heeney J., and to others who hold a different view, I am of the view that the option of employing the rotating trier process is not available when the prospective jurors are excluded. While I acknowledge that it has been commonplace for trial judges to exercise an inherent power to exclude prospective jurors from the courtroom during the selection process in recent years, I do not believe that that option remains available. While judges have some leeway in the procedure they employ in the jury selection process where Parliament is silent on a point, they have no such leeway where a procedure is laid down by the Criminal Code.
[29] In Jaser, the trial judge permitted challenges for cause on prospective jurors’ impartiality. The accused asked that prospective jurors be excluded during the challenge for cause proceedings, or in the alternative that all jurors, sworn and unsworn, be excluded and static triers used. Code J. accepted the accused’s alternative position. He concluded that where an application is brought to exclude jurors to preserve the jury’s impartiality, that application must be brought under s. 640(2.1). In his view, the common law discretion to exclude only unsworn jurors while using rotating triers had been overtaken by the new statutory regime introduced by the 2008 amendment. Trial judges still had discretion to exclude unsworn jurors, but only for reasons not related to preserving the jury’s impartiality.
[30] Conversely, in Sandham, after allowing challenges for cause related to pre-trial publicity, the nature of the offences, and possible prejudice toward members of a motorcycle club, Heeney J. agreed to the defence’s request to exclude only the prospective jurors, then bring them in one by one, and proceed with rotating triers. In distinguishing his order from an order under s. 640(2.1), Heeney J. wrote at paras. 52-53:
That is not an insignificant distinction. The new provisions clearly link the use of two static jurors with the exclusion of all sworn and unsworn jurors from the challenge process. If s. 640(2.1) is invoked, jurors will not participate in the challenge process as triers, because it will be done entirely by the two triers who are first called (triers who will never be sworn in as jurors). Additionally, the jurors will not be present for any challenge for cause except their own. Parliament appears to be dealing with a situation where, in order to preserve the impartiality of the jurors, it is necessary to completely insulate them from the challenge for cause process except, obviously, for their own.
That is not the case here. No-one has any difficulty with the jurors participating in the challenge process as triers, and no-one has any difficulty with the jurors remaining in the jury box after being sworn, while other prospective jurors are challenged.
[31] In White, Sproat J. allowed a raced-based challenge for cause. The accused then asked for an order excluding only prospective jurors; they did not want static triers. The defence submitted and the judge agreed prospective jurors would be more likely to answer the challenge honestly if they were not being watched by hundreds of other members of their community.
[32] Sproat J. granted the accuseds’ request. He held that his discretion to make an order excluding only prospective jurors had not been removed by the 2008 amendment. At paras. 32-33, he explained his reasoning, which focused on Parliament’s intent and the purpose of the 2008 amendment:
It does not logically or reasonably follow that if Parliament introduces a measure to protect jury impartiality that it thereby intends to nullify other measures that also protect jury impartiality. Put differently, if the purpose of the static triers amendment was to define the circumstances in which prospective and sworn jurors should be excluded from the courtroom, I can see that it would follow that exclusion of all jurors with static triers would imply inclusion of all jurors with rotating triers. In my view, however, that is not the purpose. The purpose is to protect juror impartiality.
Given that we know that the thrust of the static triers amendment was to protect juror impartiality, it seems both ironic and plain wrong, that it should be interpreted to deprive the trial judge of the discretion, case by case taking into account the submissions of Crown and defence counsel, to exclude prospective jurors for the purpose of preserving juror impartiality.
[33] I agree substantially with the reasons of Sproat J., and I agree with his conclusion. Like him, I view the issue as one of statutory interpretation and Parliament’s intent. A trial judge’s discretion to exclude unsworn jurors while using rotating triers to decide challenges for cause directed at alleged partiality has long been recognized. That discretion is typically exercised for the benefit of the accused, who almost always bring challenges for potential partiality. And, as Sproat J. noted at para. 21, Parliament must be presumed to have known of that discretion when it brought in the 2008 amendment: Ruth Sullivan, Sullivan on the Construction of Statutes (Markham: LexisNexis, 2014), at p. 205.
[34] Sullivan also explains at pp. 538-539 that one of the governing principles in determining the legislature’s intent is the presumption against changing the common law:
Although legislation is paramount, it is presumed that legislatures respect the common law. It is also presumed that legislatures do not intend to interfere with common law rights, to oust the jurisdiction of common law courts, or generally to change the policy of the common law. As explained in Halsbury, in a formulation adopted by many Canadian courts:
Except in so far as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make any alteration in the common law or to change any established principle of law.
These presumptions permit the courts to insist on precise and explicit direction from the legislature before accepting any change. The common law is thus shielded from inadvertent legislative encroachment. [Citations omitted.]
Thus, in my view, the guiding principle to be applied is the following: unless the statutory amendment contains words that explicitly or at least by necessary implication oust the common law discretion, that discretion will continue to exist: see, for example, Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, at pp 1315-16; R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 34.
[35] The Supreme Court recently applied this principle in at least two cases: Caron and R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. In both cases the Court said explicit statutory language would be required to remove a court’s inherent jurisdiction or discretion. In Caron, at paras. 32 and 34, Binnie J. wrote:
The Crown argues that even if the making of such an interim costs order could in theory fall within the inherent jurisdiction of the superior court, such jurisdiction has been taken away by statutory costs provisions. In this respect the Crown relies on the Provincial Offences Procedure Act, R.S.A. 2000, c. P-34, and the Criminal Code, R.S.C. 1985, c. C-46, ss. 809 and 840, which provides for example $4 a day for witnesses. The Crown argues that while not expressly limited, the inherent jurisdiction of the Court of Queen’s Bench is implicitly ousted by these enactments. However on this point, as well, the Jacob analysis is helpful:
… the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision.
I agree with Jacobs on this point as well.
It would be contrary to all authority to draw a negative inference against the inherent jurisdiction of the superior court based on "implication" and conjecture about legislative intent: Ordon Estate v. Grail, [1998] 3 S.C.R. 437. [Emphasis in original.]
[36] And in Summers, in dealing with the change to the statutory regime for granting credit for pre-sentence custody, Karakatsanis J. wrote at paras. 55-57:
Parliament is presumed to know the legal context in which it legislates. The practice of using the former s. 719(3) to award enhanced credit for both the quantitative and qualitative consequences of pre-sentence detention was deeply entrenched in our sentencing system. This practice was expressly endorsed by this Court in Wust, where the Court identified the loss of eligibility for early release and parole as a reason justifying enhanced credit.
Parliament does, of course, have the power to exclude these circumstances from consideration (barring a constitutional challenge). However, it strikes me as inconceivable that Parliament intended to overturn a principled and long-standing sentencing practice, without using explicit language, by instead relying on inferences that could possibly be drawn from the order of certain provisions in the Criminal Code.
Rather, it seems more likely that Parliament intended to do what it did explicitly. The amendments clearly impose a cap on the rate at which credit can be awarded, at 1.5:1. This is a substantial and clear departure from pre-TISA practice. Having made its intention so clear on that point, Parliament gave no indication it intended to alter the reasons for which enhanced credit can be granted. [Emphasis in original.] [Footnotes omitted.]
[37] In its 2008 amendment, Parliament explicitly gave trial judges an additional discretionary power to control the challenge for cause process and ensure a fair trial, one that is initiated by the accused. But Parliament did not by express words remove a trial judge’s discretion, which existed before the amendment, to order the exclusion of only unsworn jurors. Nor would the exercise of that discretion contravene the amendment, which provides for the exclusion of both unsworn and sworn jurors.
[38] Statements made in Parliament during the discussions of the amendment, Bill C-23, support the argument that Parliament did not intend to eliminate the discretion that previously existed. These statements show that the amendment was “not about fundamental law reform. Rather, it [was] about fine tuning”: House of Commons Debates, 39th Parl., 1st Sess., No. 62, (16 October, 2006), at p. 1200 (Rob Moore); White, at para. 18. The change to s. 640 is repeatedly referred to as a technical amendment. Parliament intended to add to – not reduce or drastically reform – the trial judge’s ability to ensure impartiality during the jury selection process. As Mr. Moore, the Parliamentary Secretary to the Minister of Justice and the Attorney General, explained at p. 1205:
The other proposed amendment will assist in preserving the impartiality of prospective jury members, as well as sworn jurors, by providing the court with the power to order the exclusion of jurors from the courtroom where a potential juror is being questioned in the course of a challenge for cause and may potentially through his or her answers inadvertently jeopardize the jurors’ impartiality. [Emphasis added.]
[39] Even if the words of an amendment could remove a recognized discretion by necessary implication, I do not think the 2008 amendment did so. An order excluding only prospective jurors, while using rotating triers, and an order excluding all jurors, unsworn and sworn, while using static triers, are two alternative ways to promote and preserve the impartiality of the jury. The latter does not impliedly oust the former. The two ways can co-exist. They do not duplicate each other. The former maintains the benefits of rotating triers, which Doherty J.A. discussed in Noureddine and I referred to earlier in these reasons. The latter removes the possibility of any tainting of the jury, which Code J. referred to in Jaser. But in both cases, the order is rooted in jury impartiality. And as Sproat J. reasoned, persuasively in my opinion, if Parliament’s purpose in bringing in the 2008 amendment was to preserve the jury’s impartiality – as unquestionably it was – then logically Parliament could not have intended to eliminate another way to achieve jury impartiality.
[40] I accept, as Code J. suggests in Jaser, that using static triers is more efficient and that using rotating triers may bring about the tainting of sworn jurors. But efficiency cannot override an accused’s right to a fair trial. And many accused are prepared to run the risk of some tainting as long as they can exclude all prospective jurors and retain the benefits of rotating triers. Finally, as a general proposition, I favour giving trial judges more discretion, rather than less, to manage the trial process fairly.
[41] I thus conclude that the 2008 amendment did not deprive trial judges of the discretion to exclude only prospective jurors from the courtroom, while using rotating triers during the challenge for cause proceedings. But it is a discretion, not a mechanical rule to be exercised automatically. Before exercising a discretion to exclude only unsworn jurors to preserve impartiality, a trial judge is entitled to insist on a sufficient reason or reasons for doing so. What is sufficient will likely vary from case to case, and is best left to individual trial judges to decide.
(d) Application to this case
[42] Did the trial judge err by ordering the exclusion of all jurors, sworn and unsworn, and appointing static triers? The appellants say that he did. Either he failed in reality to exercise his discretion or he exercised it unreasonably. And he ordered exclusion and appointed static triers in the absence of a defence application, contrary to s. 640(2.1) of the Code and the reasons of this court in Noureddine.
[43] The Crown says that the trial judge acknowledged he had a discretion to exclude only unsworn jurors but was given no reason for doing so. His refusal to make the order the appellants initially asked for should be deferred to in this court. Eventually, the Crown says, at the invitation of the trial judge, the appellants chose a different remedy: static triers together with the exclusion of all jurors, unsworn and sworn. Their choice to do so should be treated as an application under s. 640(2.1), for in substance that is what it was. Thus, the jury was properly constituted.
[44] The dialogue between the trial judge and counsel in the jury selection process was truncated, terse at best. For me, this ground of appeal raises the most difficult issue of all the issues on the appeal. I agree with the Crown’s position, but I readily acknowledge it is a close call.
(i) The trial judge recognized that he had a discretion to exclude unsworn jurors but was given no reason for exercising it
[45] Grant and Vivian are black males. The trial judge allowed a challenge for cause in which each prospective juror would be questioned whether he or she had a “bias, prejudice or partiality against black males to the extent that it would likely affect your ability to render a true verdict based solely on the evidence to be tendered at this trial.”
[46] The trial judge then asked defence counsel whether they wanted “the jury panel in or out.” They both said they wanted the panel out; the Crown took no position. The trial judge seemed to think the defence were asking for static triers, but told them correctly “you can’t have static triers unless you make an application to have the jury panel excluded during the process.”
[47] Defence counsel replied that they did not want static triers. The Crown interrupted to say “I thought it had to be static triers with the panel out, rotating triers with the panel in.” Importantly, the trial judge disagreed with the Crown: “I don’t think it has to. I thought there still is a discretion.” Counsel for Grant agreed. The trial judge followed by commenting on the different approaches of other trial judges. He said, “I don’t go quite the same way as Justice Dambrot, but almost.” He ended his comment by stating: “So I think as far as I’m concerned, the general practice, unless there’s a very good reason, is to have … static. [I]t’s presumed, unless there’s a very good reason, that it should be static as opposed to rotating” (emphasis added).
[48] Although the trial judge was wrong to suggest any presumption in favour of static triers if the panel were to be excluded, throughout his dialogue with counsel he nonetheless agreed he had a discretion to exclude prospective jurors while using rotating triers. Thus, he did not entirely agree with Dambrot J., who would have allowed no such discretion. But the trial judge said he would have to be given “a very good reason” to exercise this discretion.
[49] The trial judge repeatedly asked for the position of the defence and for submissions. Yet throughout this dialogue, even after the trial judge said he needed “a very good reason”, neither defence counsel gave him one. Neither defence counsel made any submissions on the trial judge’s discretion to exclude only prospective jurors, or on why the trial judge should have exercised this discretion. The trial judge did take a narrower view of his discretion than I think he ought to have. But the defence had the onus to persuade him that the panel should be excluded. He cannot be faulted for failing to exercise discretion to exclude only prospective jurors while using rotating triers, when defence counsel did not put forward any reason for doing so. The trial judge’s refusal to order the exclusion of prospective jurors is entitled to appellate deference, and I would not interfere with it.
(ii) The appellants’ choice of static triers should be treated as an application to exclude both unsworn and sworn jurors
[50] Having been given no reason for using rotating triers but excluding unsworn jurors, the trial judge gave counsel a choice: rotating triers with the panel in, or static triers with the panel out. After briefly consulting with each other, defence counsel reversed their earlier position and chose static triers. They evidently wanted the jury panel out. Counsel for Grant summed up the defence’s position: “[I]f we are stuck with the legislation and the Court does not want to exercise discretion to allow rotating triers and the jury out, then we’ll take the static triers.”
[51] The defence did not make a formal application under s. 640(2.1) to have the sworn and unsworn panels excluded, and to have the trial judge appoint static triers. But I would treat their decision to choose static triers as, in effect, an application to exclude both unsworn and sworn jurors. Otherwise form would supersede substance. Had the trial judge asked one additional question, “Are you then applying for an order under s. 640(2.1)”, defence counsel would undoubtedly have answered “yes”.
[52] I would not give effect to the appellants’ submissions on this first issue. The jury was properly constituted.
(2) Did the trial judge err by refusing to leave self-defence with the jury?
(a) Overview
[53] A trial judge should leave with the jury any defence that has an “air of reality”. In a brief ruling, the trial judge found that the appellants’ claim of self-defence had no air of reality and he refused to leave this defence for the jury’s consideration.
[54] The appellants submit that in his ruling the trial judge erred in two ways. First, he took a view of the evidence least favourable to the defence when he should have taken a view most favourable to the defence. And second, he made substantive findings on the elements of the defence, instead of just determining whether there was some evidence to support each element. The appellants submit that self-defence had an air of reality and should have been left with the jury. On this ground alone, the appellants argue, they are entitled to a new trial.
[55] This retrial took place between October and December, 2013. Earlier that year, Parliament amended the self-defence provisions of the Criminal Code. The trial judge analyzed whether self-defence should be left with the jury under the new provisions. He cannot be faulted for doing so. The prevailing view in the Ontario Superior Court at the time was the new provisions applied to homicides that took place before the amendment but were tried after the amendment. In 2015, however, this court held that the former self-defence provisions, not the new self-defence provisions, applied to homicides that took place before the amendment: R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22.
[56] Thus, the applicable self-defence provisions in this case are former ss. 34(2) and 37. I will therefore not focus on the trial judge’s reasons or the errors alleged by the appellants, and will instead reconsider whether self-defence had an air of reality under the old legislation. For reasons I will explain, I have concluded that the appellants’ claim of self-defence under either former provision did not have an air of reality. Although the trial judge applied the wrong legislation, he came to the right decision. I would uphold his decision and find that his reliance on the new self-defence provisions, instead of the old provisions, caused no substantial wrong or miscarriage of justice.
(b) The air of reality test
[57] A trial judge must put to a jury any defence that has an air of reality. An air of reality exists when there is evidence in the record on which a properly instructed jury, acting reasonably, could acquit. Put differently, the court asks: is the evidence relied on reasonably capable of supporting the inferences required to acquit the accused? If the answer is yes, the defence must be put to the jury. If the answer is no, the defence must not be put to the jury. To do so in the absence of an air of reality to the defence would invite confusion and unreasonable verdicts. Whether a defence has an air of reality is a question of law. Thus, the trial judge errs in law by not leaving with the jury a defence that has an air of reality: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 55.
[58] In Cinous, McLachlin C.J.C. and Bastarache J., writing jointly, elaborated on how the air of reality test should be applied.
• The trial judge should consider all the evidence but assume the evidence relied on by the accused is true. The trial judge should not make findings of credibility.
• The air of reality test applies to each element of a defence. As long as each element is supported by some direct evidence, or may be inferred from circumstantial evidence, the trial judge must put the defence to the jury.
• The trial judge should not decide the substantive merit of the defence, or even whether the defence is likely or not likely to succeed. Whether the defence has merit is for the jury to decide. The trial judge should simply determine whether there is a “real issue” that should be left for the jury.
• If the defence has an objective reasonableness component – as self-defence does – that component cannot be established by direct evidence. The trial judge must decide whether it can reasonably be inferred from circumstantial evidence; that is, evidence from which the fact in issue can be inferred.
• To assess whether circumstantial evidence is reasonably capable of supporting the inferences the accused wants the jury to draw, the trial judge is entitled to engage in a “limited weighing” of the evidence.
(c) The former s. 34(2)
[59] A person who intentionally takes another’s life can justify the killing by making out the elements of self-defence. But, as McLachlin C.J.C. and Bastarache J. said in Cinous, at para. 124: “This defence is intended to cover situations of last resort.”
[60] The former s. 34(2) of the Code provided as follows:
- (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.
[61] As elaborated on in R. v. Petel, [1994] 1 S.C.R. 3, this defence contains three elements:
• The accused must have been unlawfully assaulted or reasonably believed that he was being unlawfully assaulted.
• The accused must reasonably fear that he would be killed or seriously injured by the assault.
• The accused must reasonably believe that he could not save himself from death or serious injury except by killing the person who assaulted him.
[62] Each of these three elements of the defence has both a subjective and an objective component. The subjective component focuses on the accused’s beliefs and perceptions. The objective component focuses on the reasonableness of the accused’s beliefs and perceptions. For the defence to be left with the jury both the subjective and objective components of each element of the defence must have an air of reality. The objective reasonableness component of the third element of self-defence is critical in this case. For that component, if for no other reason, the appellants’ claim of self-defence fails the air of reality test.
[63] In R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109, Doherty J.A. discussed at some length the notion of reasonableness under s. 34(2). He emphasized at para. 73 that “[r]easonableness connotes a community standard against which the actions of individuals within the community can be measured.” Killings the community – represented by the jury – finds unreasonable cannot be justified by a claim of self-defence. But the reasonableness inquiry is not purely objective, as “the jury must consider the relevant circumstances as the accused perceived those circumstances. The jury then tests that perception against the community standard of reasonableness”: at para. 74. Doherty J.A. continued, and in doing so, drew an important distinction at para. 75:
I see a world of difference, however, between testing the reasonableness of an accused’s apprehension and belief in the circumstances as the accused perceived them and testing the reasonableness of that apprehension and belief in light of the appellant’s personal moral code or world view. It may well be, given the criminal sub-culture in which the appellant operated, that he lived by the motto “kill now or be killed later”. In assessing the reasonableness of the appellant’s conduct, however, the jury cannot accept that motto. To do so would be to effectively eliminate the “reasonableness” requirement from the defence of self-defence. Instead of reflecting community values and the community perception of when a killing is justified, the validity of the self-defence justification would lay entirely in the eye of the killer. A law of self-defence that justified what would otherwise be murder entirely on the basis of the accused’s personal belief as to the need to kill to save himself would constitute a stunning devaluation of the rights to life and security of the person to which all members of the community are entitled.
(d) Summary of the key evidence
[64] Whether the appellants’ claim of self-defence had an air of reality must be assessed at the time Grant fired the shots that killed Saez. A jury would have to accept that Grant reasonably believed that his own safety and survival and that of Vivian depended on shooting at the occupants of the Honda and killing Saez at that moment: Cinous, at para. 124. Still, the events at Dr. Flea’s, which occurred about 15 minutes earlier, are relevant because they provide context for the appellants’ beliefs and the reasonableness of their reactions at the time of the shooting. I will therefore summarize the key evidence concerning the two robberies at Dr. Flea’s and the later shooting on John Garland Boulevard. In doing so, I will focus on the appellants’ own evidence and other evidence they accept.
(i) The two robberies at Dr. Flea’s
[65] Grant and Vivian were long-time friends. On June 9, 2007, they went shopping at Dr. Flea’s, a large flea market near Highway 27 and Albion Road, where they were regular customers. They drove there in Grant’s Mercedes-Benz SUV, and arrived just before 2 p.m. Grant was wearing a gold chain and Vivian was wearing a gold and diamond cross pendant on a chain, which he had bought at the market a month earlier for $1500. Saez, Omar, Akwaboah and Dale arrived at the market together around 2:15 p.m. Grant and Vivian had never seen any of them before.
[66] The first robbery took place just before 3 p.m. Saez and Omar confronted Vivian in an aisle of the market. Saez grabbed Vivian’s pendant, snapping it off the chain. Saez and Omar then left the market area. Vivian and Grant followed them because Vivian wanted his pendant back. Saez then pulled out a semi-automatic handgun, pointed it at Vivian, and said “what pussy”. Omar also pulled out and brandished his semi-automatic handgun. Vivian and Grant were scared and retreated back into the market.
[67] Seconds later, Akwaboah grabbed the collar of Grant’s sweater from behind, broke the gold chain around Grant’s neck, and ran down an aisle. Vivian and Grant ran after Akwaboah and were confronted by Dale. The four started fighting. Dale punched Grant in the face several times and inflicted a cut under his right eye. Security and other personnel from the market arrived quickly and broke up the fight. The owner of the market gave Grant his broken chain, which he had found on the floor.
[68] Neither Grant nor Vivian wanted the police called. Both were drug traffickers. Grant was carrying marijuana, and had more drugs and a loaded semi-automatic handgun in his Mercedes. Vivian was carrying marijuana and about $2,000 in drug money. After the fight ended, they left the market quickly. It was just before 3 p.m., about 15 minutes before the shooting. Grant was driving and he and Vivian talked about what had happened. Vivian claimed he became concerned about the way Grant was driving, so the two changed places and Vivian took over the wheel.
[69] Meanwhile Saez, Omar, Akwaboah and Dale went to a nearby Subway sandwich shop. From there, Akwaboah called his friend Paddy for a ride. Paddy picked up the four men in his Honda Civic. Akwaboah was in the front passenger seat, Saez in the rear driver side seat, Dale in the rear middle seat, and Omar in the rear passenger side seat. Paddy drove east on Albion Road to Kipling Avenue, and then turned right to go south to John Garland Boulevard.
(ii) The shooting
[70] Grant’s and Vivian’s evidence about the shooting and the events leading up to it are as follows. About 15 minutes after the events at Dr. Flea’s, Vivian and Grant were in Grant’s Mercedes in the centre lane of Kipling Avenue, travelling south, when they noticed a car was tailing them. The car, a Honda, then pulled up beside them in the curb lane. Grant and Vivian realized that in the Honda were the men with whom they had had an altercation at the market. The man in the rear driver side seat, Saez, taunted Grant and Vivian by holding Vivian’s pendant out the car window.
[71] As Grant and Vivian were cursing to each other about the taunting, the Honda “banged a right” from Kipling Avenue onto John Garland Boulevard. Vivian wanted his pendant back, so he followed the Honda and also made a right turn onto John Garland Boulevard. Grant said Vivian’s decision to follow the Honda was unexpected.
[72] Vivian said that as he made the right turn, he saw Omar put his gun out of the rear passenger side window. Grant also saw Omar’s gun as the Honda turned onto John Garland Boulevard. Both Grant and Vivian admitted Omar’s gun was never pointed at them. They said they believed Saez also had a gun, but they agreed he never brandished it as they pursued the Honda.
[73] Vivian was behind the Honda when he saw Omar’s gun. He shifted the Mercedes from the curb lane to the passing lane and accelerated to catch up to the Honda. He claimed he did so to try to pass the Honda and get out of harm’s way. Grant also acknowledged that the Honda was ahead of the Mercedes and that Vivian had to accelerate quickly to catch up.
[74] Grant said that as soon as he saw Omar flash his gun, he withdrew his own loaded gun from the glove department and started shooting. He did so because he believed that firing his gun was the only way to save his life and that of his friend Vivian. He had no choice. His instinct was that he and Vivian were going to be killed. Grant also said that everything happened very fast, and he did not have time to think things through. He testified: “[W]hen I saw the gun, I just – I just – I panicked”.
[75] Grant fired 13 times into the driver’s side of the Honda. He said he did not aim specifically at Omar, but agreed that he intended to do as much damage as possible to the Honda’s occupants. Twelve of the 13 shots hit the Honda. Six shots hit Saez, who was killed. Only Akwaboah was not wounded.
[76] Forensic evidence shows that before Grant opened fire, the Mercedes pursued the Honda for approximately 150 metres along John Garland Boulevard, west of Kipling Avenue. The Mercedes travelled another 80 to 85 metres while Grant was shooting. During this time, Grant never told Vivian to stop the car or turn away from the danger. Nor did he fire a warning shot. Vivian never stopped or turned around, and he made no attempt to stop Grant from shooting. After the shooting, Vivian “stepped on it” and they drove off.
(e) The appellants’ claim of self-defence under former s. 34(2) has no air of reality
[77] The Crown acknowledges and I agree that Grant had the necessary subjective belief to found a claim of self-defence. Assuming his evidence to be true, and taking into account what occurred at Dr. Flea’s, Grant believed he was being assaulted when Omar brandished his gun, he feared he would be killed, and he believed he could not save himself and Vivian from being killed except by shooting at the Honda.
[78] But I also agree with the Crown that Grant’s subjective beliefs were not reasonable beliefs. Although I doubt that there was any air of reality to the reasonableness component of either of the first two elements of s. 34(2), I will focus on the reasonableness component of the third element. In my view, Grant’s belief that he could not save himself and Vivian from death or serious injury except by shooting at the Honda was an unreasonable belief.
[79] I accept that events happened rapidly on Kipling Avenue and John Garland Boulevard, and a reasonable person would not have had time for a measured response. But Grant’s claim that he could not preserve his life and the life of his friend Vivian except by shooting at the Honda was unreasonable. Though a reasonable person may have felt threatened, Grant’s claim that he had no choice but to shoot at the Honda revealed the “kill or be killed” mentality, which Doherty J.A. warned against in Pilon. And it was a manifestly unreasonable mentality. It led Grant to rush to extreme, unnecessary, and unreasonable violence.
[80] The third objective component under s. 34(2) will only be satisfied when the accused reasonably believed there were no alternatives available but to kill. McLachlin C.J.C. and Bastarache J. explained, at para. 123 of Cinous:
Section 34(2) does not require that an accused rule out a few courses of action other than killing. The requirement is that the accused have believed on reasonable grounds that there was no alternative course of action open to him at that time, so that he reasonably thought he was obliged to kill in order to preserve himself from death or grievous bodily harm. [Emphasis added.]
[81] Here, the Honda was moving away from Grant when Omar flashed his gun. And Omar did not point his gun at the appellants. Omar was not even in a position to shoot at the appellants, either when the Mercedes was behind the Honda or when the Mercedes was just passing the Honda. Only when the Mercedes pulled even with the Honda, 150 metres after turning onto John Garland Boulevard, did Grant open fire. Yet, he had several other ways of dealing with the threat he perceived. He could not reasonably believe shooting at the Honda was his only option.
[82] A reasonable person would not have grabbed his loaded gun and fired 13 shots into a car with 5 occupants and with the stated intention of doing as much damage as he could to those occupants. A reasonable person would have told Vivian that he had seen a gun and told him not to turn onto John Garland Boulevard, or if he turned, to turn around or to stop, or at least to slow down. A reasonable person, if minded to use a gun, might at least have fired a warning shot. Grant did none of these things, and gave no explanation for why he did not.
[83] Vivian’s reaction, too, was not reasonable. A reasonable person, after seeing Omar’s gun, would not have followed the Honda for 150 metres along John Garland Boulevard. A reasonable person would have turned around or braked, not accelerated so the Mercedes was level with the Honda, giving Grant an opportunity to fire. As Vivian acknowledged in his evidence: “I could have done a lot of things…” Yet he did none of them.
[84] Under the third element of self-defence in s. 34(2), the accused’s belief that he had no other option but to kill must have been objectively reasonable: Cinous, at para. 121. Grant and Vivian have not put forward any evidence from which an air of reality for this requirement can be inferred. They had several obvious courses of action other than following and shooting at the Honda. They pursued none of them and gave no explanation why they did not do so. If for no other reason, as in Cinous, Grant’s and Vivian’s claim of self-defence must fail on the reasonableness component of this third element. Their claim that Grant had no choice but to shoot at the Honda was unreasonable.
(f) The appellants’ claim of self-defence under former s. 37 had no air of reality
[85] The former s. 37(1) 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.
[86] To make out self-defence under this provision, an accused had to meet three requirements:
• The accused was unlawfully assaulted.
• The accused used force to defend himself from the assault.
• The accused used no more force than was necessary to prevent the assault or prevent it from continuing.
[87] The third requirement is the critical requirement. Section 37 reflects the idea of “proportionate force”: R. v. Mulder (1978), 40 C.C.C. (2d) 1 (Ont. C.A.). The force used to defend oneself must be both objectively necessary and objectively proportionate: R. v. Ribic, 2008 ONCA 790, 238 C.C.C. (3d) 225, at para. 62. Grant’s shooting 13 times into the Honda was neither. First, it was not necessary. As I said in discussing s. 34(2), Grant and Vivian had other alternatives than pursuing and shooting the men in the Honda. Second, Grant’s shooting at the Honda was not proportionate. Omar’s gun was not pointed at him and he did not know if it was loaded. And even accepting his evidence, he fired not once or twice, but 13 times, into a car with 4 passengers and a driver, and with the express intent to cause as much damage as possible. The appellants’ claim of self-defence under s. 37 had no air of reality.
[88] I would not give effect to this ground of appeal.
(3) Did the trial judge err by refusing to leave provocation with the jury?
[89] The defence of provocation is codified in s. 232 of the Criminal Code. If its requirements are met, it reduces murder, which is an intentional killing, to manslaughter, which is not. Sections 232(1) and (2) provide:
232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.
[90] The defence of provocation is a concession to human frailty. In some circumstances, an accused’s unlawful conduct from a loss of self-control, though blameworthy, is understandable. But not all instances of loss of self-control will be excused. Provocation under s. 232 has both an objective and a subjective element. The objective element requires that there be a wrongful act or insult, which is sufficient to deprive an ordinary person of the power of self-control. The subjective element requires that the accused must have acted in response to the provocation and on the sudden before his or her passion had time to cool: R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at paras. 32-34; and R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 25 and 36.
[91] The objective element of the defence, with its focus on the “ordinary person”, is meant to reflect contemporary society’s values. As Charron J. said in Tran, at para. 30: “[B]ehaviour which comports with contemporary society’s norms and values will attract the law’s compassion.” The “ordinary person”, as Lord Diplock explained in D.P.P v. Camplin, [1978] A.C. 705 (H.L.), means “an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.” And as McLachlin C.J.C. said in Cairney, at para. 40, “a certain threshold level of self-control is always expected of the ‘ordinary person’… [T]he standard should not be adapted to accommodate a particular accused’s innate lack of self-control.”
[92] The trial judge held that provocation had no air of reality and refused to leave this defence with the jury. His ruling focused on the “ordinary person” and the objective element of the defence.
As for the partial defence of provocation, s. 232(2) of the Criminal Code requires that an ordinary reasonable person would have been deprived of the power of self-control by the deceased or his associates' wrongful acts or insults. This issue must be viewed in the earlier context of what had happened at the flea market. The deceased Saez had earlier stolen the pendant from the accused Vivian. Later, Saez and his associate, Omar, exposed their guns to the accused outside the flea market, although they never pointed the guns at the accused. Approximately 20 minutes later, the deceased Saez taunted both accused by flashing the stolen pendant at the accused. The pendant had no sentimental value to the accused Vivian. As well, Mustafa Omar taunted the accused by pointing his gun into the air after the [Honda] Civic was well in front of the SUV. This was another insult to both accused.
The issue is whether these two insults would have been sufficient to deprive an ordinary reasonable male of similar age and background to the accused to have lost the power of self-control. I am satisfied that the two insults would not have had that effect on an ordinary person. The ordinary person would have been angered but not to the extent of losing self-control. After all, the accused were not physically assaulted or even threatened with any form of immediate assault.
In the result, I find that the partial defence of provocation lacks an air of reality, so that I will not put the partial defence to the jury nor may defence counsel.
[93] The appellants submit that the trial judge erred in his ruling because he relied on a view of the evidence least favourable to the defence, failed to consider what had earlier happened at the flea market, and instead of considering whether there was some evidence supporting the defence, conclusively determined that it had no merit. I do not agree with the appellants’ submission. As I read the trial judge’s ruling, though he was mistaken in saying Omar and Saez never pointed their guns at the appellants at Dr. Flea’s, he considered the evidence favourable to Grant and Vivian, including the robberies at the flea market, and concluded that the evidence did not give an air of reality to the objective element of the defence. I agree with his conclusion.
[94] Indeed, the trial judge’s finding that the appellants “were not physically assaulted or even threatened with any form of immediate assault” was supported by their own evidence. Both Grant and Vivian admitted that the Honda was ahead of the Mercedes and driving away when Omar flashed his gun, and that he did not fire it or even point it at either appellant. This finding, supported by the appellants’ own evidence, bolsters the trial judge’s conclusion that the taunts from Saez and Omar may have angered the ordinary person but would not have deprived the ordinary person of self-control.
[95] But even assuming Grant had lost self-control – and that was not his evidence – his response was well outside the threshold level of self-control we expect of all persons in our society. Few slights, if any, should be answered with the kind of violence Grant inflicted on those in the Honda. The absence of an air of reality to the objective element of provocation is sufficient to decide this ground of appeal.
[96] It seems to me, however, that the appellants face two other hurdles in trying to show an air of reality to this defence: on their own evidence, the subjective element of provocation has no air of reality; and their claim of being provoked is inconsistent with Grant’s claim that he opened fire out of self-defence.
[97] To show an air of reality for the subjective element of provocation, Grant had to put forward some evidence that he was provoked by an act or insult and in response to the provocation acted on the sudden before there was time for his passion to cool. The robberies at Dr. Flea’s provide context for what occurred later but those robberies were not capable of constituting the wrongful acts that could give an air of reality to provocation. Grant could not have “acted on the sudden” to these robberies because they occurred at least 15 minutes earlier. And on their evidence, the appellants had written off Vivian’s pendant, had left the events at Dr. Flea’s behind, and were on their way home.
[98] So the acts or insults on which the claim of provocation rested were Saez’s holding up Vivian’s pendant to taunt the appellants and Omar’s brandishing of his gun. But Grant did not say he reacted to these insults or taunts out of anger or rage or any loss of self-control. He claimed he opened fire because he feared for his life and for Vivian’s life. That is a claim of self-defence, not provocation.
[99] Grant did say he had to react quickly, and at one point in his testimony, he said he panicked. But it was a panic borne not because he was provoked, but because he said he feared for his life. On his own evidence, Grant’s state of mind was self-preservation, not the rage or loss of control required for provocation.
[100] Although the trial judge did not address the subjective element of provocation, and asked counsel to focus their submissions on the objective element, I am not satisfied that the appellants’ evidence gives an air of reality to this subjective element.
[101] Finally, the appellants’ claim of being provoked does not sit well with their principal defence of self-defence. Again, the entire tenor of Grant’s evidence was that he opened fire to save himself and Vivian, not because he was enraged or out of control.
[102] In deciding whether a defence has an air of reality, a trial judge must look at all the evidence. And if there is some evidence giving an air of reality to a defence that defence must be left with the jury, even if it appears inconsistent with the appellants’ own evidence or principal narrative.
[103] Thus, in both R. v. Gill, 2009 ONCA 124, 241 C.C.C. (3d) 1, and R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, this court held that provocation should have been left with the jury together with self-defence, even though the accused in each case disavowed acting out of anger or a loss of control. But in both cases the Crown had argued to the jury that the accused’s actions were motivated by anger. In doing so, the Crown had implicitly acknowledged the existence of some evidence of provocation.
[104] In the case before us, the Crown argued that the appellants acted not out of anger, but out of revenge and because they had been “disrespected”. And there was no evidence in the record apart from the appellants’ evidence that would give an air of reality to the defence of provocation. The trial judge was correct not to leave this defence with the jury. I would not give effect to this ground of appeal.
(4) Did the trial judge err in his instructions on reasonable doubt?
[105] In R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39, Cory J. set out a suggested jury charge on reasonable doubt. It contains five paragraphs:
(1) The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
(2) A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
(3) Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
(4) On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
(5) In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
[106] The suggested charge has been adopted in Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2012). As Cory J. emphasized, however, the suggested charge “is not a magic incantation that needs to be repeated word for word. It is nothing more than a suggested form that would not be faulted if it were used”: at para. 40.
[107] In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, Iacobucci J. suggested adding to the Lifchus charge the following sentence: Proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.
[108] The trial judge followed the Lifchus/Starr model charge. But in doing so, he departed in two ways, and the appellants argue these departures were errors that rendered his charge improper. First, though he added the Starr sentence, he omitted the word “much”, and failed to correct this error by also omitting the fifth paragraph of Lifchus that the jury could convict only if they were “sure” of the accused’s guilt. Second, the trial judge added an ingredient to the model charge that should not have been there. He told the jury they should be able to articulate a reason for having a reasonable doubt.
[109] I do not think the first error the appellant alleges was an error at all. Neither the addition of “much” or even “closer” or “sure” is mandatory. The important point a trial judge must convey to a jury is that proof beyond a reasonable doubt requires something less than absolute certainty but more than probable guilt. The trial judge made that very point, and his addition that a reasonable doubt falls closer to certainty, though not mandatory, reinforced the point.
[110] The second error the appellants allege is more concerning. This court and the Supreme Court have repeatedly said that it is improper to instruct jurors they must be able to articulate a reason for any reasonable doubt they may have. The instruction is improper because jurors may legitimately have a reasonable doubt, yet not be able to state a reason for it: R. v. Jenkins (1996), 29 O.R. (3d) 30 (C.A.), at p. 58; R. v. Carrière (2001), 159 C.C.C. (3d) 51 (Ont. C.A.), at paras. 26-27; and Lifchus, at para. 30.
[111] Still this instruction, though improper, does not justify finding reversible error in the trial judge’s overall charge on reasonable doubt. Missing words or extra ingredients that should not be there do not by themselves invalidate a trial judge’s charge. Instead of focusing on individual words or isolated parts of a charge, an appellate court has to read the charge as a whole. If, when read as a whole, an appellate court is satisfied the jury could not have misunderstood the correct burden of proof, then the charge should be upheld. Put differently, an appellate court asks whether there is a reasonable possibility the trial judge’s charge could have misled the jury into applying a lesser burden of proof: R. v. Brydon, [1995] 4 S.C.R. 253, at para. 19. If the answer to that question is no, then isolated parts of the charge that deviate from the model charge will not amount to reversible error. Substantial compliance with the model charge, not perfect compliance, is what is required: Starr, at para. 233; R. v. Beauchamp, 2000 SCC 54, [2000] 2 S.C.R. 720, at para. 16; R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, at para. 2.
[112] The trial judge’s charge in this case substantially complied with the model charge. Despite the improper instruction that jurors should be able to articulate a reason for any reasonable doubt, on reading the charge as a whole, I am satisfied the jury could not have misapprehended the degree of proof required. I note that both this court and the Supreme Court have upheld charges containing this improper instruction: see Russell; Beauchamp; and Carrière. Here, that the jury acquitted the appellants of first degree murder is strong evidence they correctly understood the burden of proof for guilt.
[113] I would not give effect to this ground of appeal.
(5) Did the trial judge err in his W.(D.) instruction?
[114] Likely no case in Canadian criminal law has been cited more often than Cory J.’s judgment in R. v. W.(D.), [1991] 1 S.C.R. 742. In W.(D.), at p. 758, Cory J. set out a model instruction for assessing credibility when an accused testifies. The instruction has three components:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[115] The purpose of this instruction is to tell jurors that the principle of reasonable doubt applies to their credibility assessment. Jurors are entitled to have a reasonable doubt about an accused’s guilt even if they do not believe the accused’s evidence. Thus, the W.(D.) instruction is meant to ensure jurors do not decide on an accused’s guilt simply by choosing whether to believe the Crown’s evidence or the accused’s evidence. Turning the case into a credibility contest does not take account of the reasonable doubt standard. Although a trial judge need not slavishly follow the exact words of Cory J.’s proposed instruction, he or she should convey its substance to the jury: W.(D.), at p. 758.
[116] The appellants acknowledge that the trial judge gave a W.(D.) instruction. But they contend he embellished it in four ways, and in so doing invited the jury to do what W.(D.) warns against: engage in a credibility contest and decide the case by choosing whether to believe the appellants or the witnesses for the Crown. I do not agree with the appellants’ contention.
[117] Part of the trial judge’s W.(D.) instruction and passages surrounding it are as follows (with the four parts the appellants challenge underlined):
It should be obvious to you that the evidence favouring the Crown and that favouring the particular accused on these essential matters cannot stand together. Each version is at odds with the other. Since each version cannot each be factually true, you must assess the credibility and reliability of the witnesses and the accused’s evidence, including physical evidence found in the exhibits supporting each version.
I direct you that you must consider these essential matters on the following basis, only after having first assessed all the evidence and the credibility and reliability of the witnesses and the physical evidence relating to these essential matters. First, if you accept the evidence favouring the particular accused on the particular essential matter and find it to be factually true when weighed against the contradictory evidence favouring the Crown, you must acquit the accused to whom the essential matter relates. I will repeat that. If you find the evidence favouring the accused, including his own testimony, on the particular essential matter and find it to be factually true when weighed against the contradictory evidence favouring the Crown, you must acquit the accused to whom the essential matter relates.
Second, even if you do find as fact that the evidence favouring the accused on the essential matter is true but have a reasonable doubt as a result of it, you must also acquit the particular accused. I will repeat that. Second, even if you do not find as fact that the evidence favouring the accused on the essential matter is true, but have a reasonable doubt as a result of it, you must also acquit the accused.
Third, even if you do not have a reasonable doubt on the particular essential matter, because you reject the evidence favouring the accused as untrue, you must still determine whether the Crown has convinced you of the guilt of the particular accused beyond a reasonable doubt on the basis of credible and reliable evidence which you do accept and find to be factually true after having considered all the evidence as a whole. I will repeat that as well. Third, even if you do not have a reasonable doubt on the particular essential matter because you reject the evidence favouring the accused as untrue, you must still determine whether the Crown has convinced you of the guilt of the particular accused beyond a reasonable doubt on the basis of credible and reliable evidence which you do accept and find to be factually true after having considered all of the evidence as a whole.
Finally, keep in mind that you are not compelled to choose between the evidence favouring the Crown and the evidence favouring the accused on essential matters, particularly if each version appears to be credible in the sense that you are unable, after reasonable and thorough determination, to determine which witnesses are telling the truth.
Rather, the Crown bears the burden of proving the accused’s guilt beyond a reasonable doubt, though, of course, you should do your best to determine who is telling the truth and who is not. After all, your sworn duty is to render true verdicts based solely on the evidence. That, necessarily, involves a search for truth.
[118] I will now address each of the challenged passages, keeping in mind that the charge must be read as a whole and an appellate court must be satisfied that “the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply”: W.(D.), at p. 758.
[119] First, the appellants submit that when the trial judge said it should be obvious to the jury the evidence favouring the Crown and the evidence favouring the accused could not stand together, he was setting up a credibility contest. I disagree. That the two versions were at odds, was as the trial judge said, obvious, and would have been obvious to the jury.
[120] Second, the trial judge added a gloss to the first component of W.(D.) by using the phrase “when weighed against the contradictory evidence favouring the Crown”. The gloss is not in the actual W.(D.) instruction. Central, however, to the proper application of W.(D.) is that the accused’s evidence be considered not in isolation but in the context of the evidence as a whole.
[121] Cory J., at p. 757, recognized the importance of assessing an accused’s evidence in the context of the evidence as whole in the passage in his reasons immediately preceding his proposed instruction:
In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. [Emphasis in original.]
[122] By using the “weighed against” gloss in the first component of W.(D.), the trial judge was telling the jury they could not find a reasonable doubt by considering only the appellants’ evidence. They had to consider their evidence in the light of the rest of the evidence. It might have been better had the trial judge told the jury to consider the appellants’ evidence in the context of the evidence as a whole. But using the words “weighed against the contradictory evidence favouring the Crown” reflected the reality that the Crown’s evidence and the appellants’ evidence did contradict each other. And, though the sufficiency of this charge must be assessed by reading it as a whole, both in R. v. Campbell(2003), 170 O.A.C. 282 (C.A.), and R. v. Hoohing, 2007 ONCA 577, a W.(D.) instruction containing the same gloss was upheld by this court.
[123] Third, the appellants say that telling the jury they were “not compelled to choose between the evidence favouring the Crown and the evidence favouring the accused” was also improper. They say the jury should have been told they must not decide the case by choosing between competing versions. This fine distinction the appellants seek to make does not resonate with me. In listening to and reading the charge as a whole, the jury would have understood that they were not to decide the case by choosing whether to believe the appellants’ or the Crown’s witnesses. They would have understood that they had to apply the reasonable doubt standard to the evidence. Again, in Hoohing, this court upheld a W.(D.) instruction containing the identical passage the appellants complain about.
[124] Finally, the appellants say that the trial judge’s added phrase, “though, of course, you should do your best to determine who is telling the truth and who is not” – a phrase not in the charge in Hoohing – is fatal to the charge in this case. I disagree because of the context in which the trial judge used the phrase. I see nothing wrong with encouraging jurors to try to figure out who is telling the truth as long as they recognize they might not be able to do so, and thus be left with a reasonable doubt about an accused’s guilt. The trial judge’s suggestion to the jurors to search for the truth was not said in a vacuum. It was prefaced again by his emphasis on the Crown’s burden to prove the appellants’ guilt beyond a reasonable doubt. Indeed, the trial judge’s instruction reflects what this Court said in R. v. Hull (Ont. C.A.), at para. 5:
W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
[125] The trial judge’s W.(D.) instruction did not invite the jury to engage in a credibility contest and decide the case by choosing which version of events to prefer. Instead, he properly instructed them to assess credibility in accordance with W.(D.) and the reasonable doubt standard.
[126] I would not give effect to this ground of appeal.
(6) Did the trial judge make comments that gave rise to a reasonable apprehension of bias?
[127] The appellants challenge three comments made by the trial judge over the course of a 25-day trial. They contend that these three comments, individually and collectively, gave rise to a reasonable apprehension of bias. They say that these comments – in the absence of the jury and made before the defence called any evidence – show that the trial judge had pre-judged their guilt and closed his mind to the possible merit of the defences of self-defence and provocation.
[128] The appellants’ submission must be assessed in the light of the high threshold for showing bias. We presume judges will be impartial. We presume they will carry out their oath of office and act fairly to litigants. This high threshold requires cogent evidence to make out a claim of bias. The test to meet, which has stood for many years, is would an informed person, viewing the matter realistically, and having thought the matter through, conclude that the trial judge would not decide the matter fairly: Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394.
[129] This test recognizes that appearances count. Justice must not only be done; it must appear to be done. Thus, the test captures both actual bias, which is rarely alleged, and the appearance of bias, which is more commonly alleged. In applying the test for bias to the trial judge’s comments in this case, I focus on whether the trial judge had merely expressed his tentative views, as the Crown submits, or whether he had closed his mind to the defence’s position, as the appellants submit. A trial judge is entitled to express tentative views to counsel and their clients. Good counsel welcome a dialogue with the court and welcome a judge’s expression of tentative views against their position because these views help counsel focus their arguments on the points the judge is having most difficulty accepting. Counsel’s objective, obviously, is to get the judge to reconsider those views. What judges must not do is cross the line and pre-judge or close their minds to counsel’s arguments.
[130] In my opinion, in the three comments the appellants challenge, the trial judge did no more than express his tentative views of the case presented to him up to the point when he made each of the comments. With the benefit of hindsight, these comments would have been better left unsaid. But in the course of a long trial the odd inappropriate comment, regrettable as it may be, falls far short of disqualifying bias. I now turn to the three comments.
[131] The first comment occurred at the outset of the trial during submissions on the defence’s objection to the Crown’s opening statement:
MS. BIRD: In my submission, Your Lordship, I didn't stray outside the permissible bounds. At this point, the credibility of the witnesses is what is in issue. Mr. Posner seems to be alluding to something, perhaps a self-defence...
THE COURT: I don't think there's any basis for self-defence, obviously, from what I've heard.
MS. BIRD: No, but I can't imagine how else the – that seems to be the implication, and it harkens back to comments made during the pre-trial motions about perhaps the people in the blue Honda were the aggressors, not the...
THE COURT: Well, they may have been the initial aggressors, but so what?
MS. BIRD: That would certainly be the Crown's position…
[132] The trial judge’s comment “I don’t think there’s any basis for self-defence, obviously, from what I’ve heard” was understandable. All he had heard was the Crown’s opening. And this was a retrial. At the first trial the issue to be resolved was the identity of the assailants. Neither appellant had testified and neither appellant had claimed self-defence. So neither the trial Crown nor the trial judge had any idea that self-defence would be a live issue at the second trial. In fact it was clear from the exchange that the trial judge anticipated identity would be the main issue.
[133] The second and third comments occurred after the close of the Crown’s case before the defence had called any evidence. These comments were made during the defence’s application to lead evidence of Saez’s previous propensity for violence under the principle in R. v. Scopelliti(1981), 34 O.R. (2d) 524 (C.A.). In his submissions on the application, Vivian’s counsel referred to the Crown’s opening, in which she had said the men in the Honda were not expecting any further violence after they left the flea market. He contended that the Scopelliti evidence would undermine the Crown’s theory. His reference to the Crown’s opening prompted the following exchange, which the appellants submit shows the trial judge had already decided the merits of the appellants’ self-defence and provocation defences:
MR. POSNER: What she's about – what I'm about to read to you doesn't go – does not go to the issue of self-defence. It goes to the issue of planning and deliberation. Let me read it because it's important. It goes right to what we're talking about: "What will be clear from the evidence is that in the minds of everyone in that blue car, in the minds of everyone in that blue car, the problems in the flea market had been left behind. They had no reason to believe that anything else was going to happen." Now, let me…
THE COURT: That seems reasonable to me so far.
MR. POSNER: That's why we have juries, m'lord. That's why we have juries.
THE COURT: That's right. You would have lost a long time ago with me.
[134] Significantly, rather than object to the trial judge’s comment, defence counsel signaled that he could appreciate why the trial judge might be having trouble with the hypothetical:
MR. POSNER: You haven't heard their evidence, m'lord. You haven't heard the evidence. You haven't heard the evidence. But I hear what you're saying. I understand why you're saying that.
[135] The trial judge’s comment and defence counsel’s reply were somewhat flippant. But the trial judge had not closed his mind to the defence’s position. He just had not heard anything to support it. Indeed, defence counsel’s last comment shows that he understood the trial judge was having trouble with his position and why.
[136] The submissions on the Scopelliti application continued and counsel for Vivian argued that the proposed evidence would show the men in the Honda wanted to hunt down the appellants. His argument led to the last challenged comment of the trial judge:
THE COURT: There's a hunting down on the road, there's no doubt. The question is, were your people the hunters or were you the huntee? That's the big issue, factual issue for the jury, and I'm not going to tell them what my opinion is, but I do have an opinion, obviously.
[137] The appellants contend this comment shows the trial judge had already concluded, before the defence had called any evidence, that the appellants had hunted down the men in the Honda. The comment was unwise. But I take it as no more than reflecting the trial judge’s skepticism of the defence’s theory. His skepticism was justified. When Grant opened fire, the Mercedes was pursuing the Honda. This scenario seemed to undermine the defence’s argument.
[138] I conclude that neither of the trial judge’s comments during the Scopelliti application meets the test for bias. In both cases the trial judge expressed his tentative view, perhaps in stronger language than he should have, of the appellants’ position. But he had not closed his mind to their position. That he had not done so is evident from his later consideration of the defence’s submissions.
[139] In the absence of the jury, before Vivian was cross-examined, the trial judge stated in neutral terms the issues he had to decide:
THE COURT: The two issues – the two issues I think have to be whether or not there’s an air of reality to self-defence, the threat of force here in the circumstances. And then the other thing is the same gesture or conduct, whether or not that gives rise to an air of reality in relation to a reasonable person within the provocation defence. That’s all.
[140] Then the trial judge carefully considered the appellants’ submissions that those two defences should be left with the jury. He gave the appellants a full opportunity to make their submissions. Only after they had done so did the trial judge rule. The record of these submissions shows that the trial judge had not pre-judged or closed his mind to the defence’s position. On the contrary, he was actively engaged in considering the defence’s arguments.
[141] I would not give effect to this ground of appeal.
(7) Did the trial judge adequately caution the jury on Paddy’s preliminary inquiry evidence?
[142] Paddy testified at the preliminary inquiry. Only Grant and his counsel were present, as Vivian remained a fugitive in Jamaica. Paddy then died before the appellants’ first trial. His preliminary inquiry evidence was read in without objection from defence counsel.
[143] At the appellants’ second trial, the Crown again sought to tender Paddy’s preliminary inquiry evidence. This time, Vivian objected to its admission. He contended that the evidence had little probative value and was highly prejudicial because he had no opportunity to cross-examine Paddy. The trial judge dismissed the objection. He held that the evidence was both necessary and reliable, and therefore admissible under the principled exception to the hearsay rule. The evidence was again read into the record. The trial judge, however, cautioned the jury that in considering Paddy’s evidence they were disadvantaged because of their inability to assess Paddy’s demeanour when he testified at the preliminary inquiry.
[144] On appeal, Vivian abandons his challenge to the admissibility of the evidence. He concedes that the trial judge’s ruling was discretionary and entitled to deference in this court. Instead, Vivian challenges the adequacy of the trial judge’s caution. He submits that the caution was inadequate because the trial judge did not tell the jury they were also disadvantaged because of the absence of cross-examination by Vivian’s counsel.
[145] I suspect the lack of cross-examination from Vivian’s counsel would have been obvious to the jury. But even if the trial judge ought to have reminded the jury that Paddy had not been cross-examined by Vivian’s counsel, I would not give effect to Vivian’s submission. In my opinion, the trial judge’s caution was adequate.
[146] The adequacy of the trial judge’s caution should be assessed in the light of the significance of Paddy’s evidence, the context in which it was given, and the likely impact of the absence of cross-examination.
[147] Paddy testified that the men in the Honda were ambushed by the appellants, driving in the Mercedes. His evidence thus supported the Crown’s theory that Vivian pulled the Mercedes even with the Honda so Grant could open fire, and contradicted Vivian’s own evidence. But Paddy’s evidence was not crucial evidence. Three of the other occupants of the Honda testified at trial and were vigorously cross-examined.
[148] The context for Paddy’s evidence is also important. He gave his evidence in a courtroom, under affirmation, and was subject to cross-examination by Grant’s counsel. He did not refuse to testify; he died before the trial. And Vivian’s unavailability to cross-examine was his own doing. Vivian fled to Jamaica three days after the shooting. He knew by July 2007 that he was wanted by the Toronto Police. He knew by August 2007 that Grant had been arrested in Jamaica. Yet Vivian remained a fugitive for over 20 months, and so was not present in August 2008 when Paddy testified at the preliminary inquiry.
[149] Finally, most important, Vivian’s inability to cross-examine Paddy would have had no impact on the jury’s ability to assess his evidence for two reasons. First, Paddy was cross-examined by Grant, and Grant and Vivian had consistent defences. Second, the main issue at the first trial was identity. Who ambushed whom was not a live issue. Even if Vivian had been present at the preliminary inquiry, he likely would not have cross-examined on the issue to which the appellants now attach significance.
[150] The trial judge’s caution was adequate. I would not give effect to this ground of appeal.
(8) Did the trial judge err by refusing to admit evidence about the gang affiliations of some of the men in the Honda?
[151] The appellants applied to lead three categories of “gang” evidence:
• Evidence that several of the young men in the Honda were associated with the Jamestown Crips, a criminal organization known for drug dealing and gun violence;
• The evidence of Detective Bacchus, a police gang expert, that the Jamestown Crips had a history of using violence against rival drug dealers who ventured into their territory, and that Dr. Flea’s was on the edge of their territory;
• Evidence that Saez had a propensity for violence toward perceived rivals who entered Jamestown Crips territory and had previously violently attacked at least one person.
[152] The appellants argue that this proposed evidence was relevant for two related reasons: it gave some credence to their theory that the men in the Honda were the aggressors; and it undermined the credibility of the men in the Honda who testified for the Crown and said they were not the aggressors. In a brief ruling the trial judge dismissed the appellants’ application:
I find that the evidence of gang membership by Messrs. Akwaboah and Saez is, at best, marginally relevant to the defence of self-defence. This finding also applies to Mr. Saez's two prior incidents of violent conduct. In the end, I am satisfied that the potential prejudice of this propensity evidence to the conduct of a fair trial substantially outweighs its probative value. The jury already knows that the so-called victims in this case were not law-abiding citizens but bad persons.
[153] The appellants submit that the trial judge’s ruling reflects two errors. First, the law favours the admission of evidence, even if it is “marginally relevant”, and the relevance of this evidence was far more than marginal. Second, the trial judge failed to explain how the potential prejudice of the proposed evidence could affect trial fairness or outweigh its probative value. As the trial judge acknowledged, the jury knew these men were “bad people” and would unlikely be inflamed by the proposed evidence. Further, any possible prejudice could have been addressed by a proper caution from the trial judge.
[154] The trial judge did not err by dismissing the defence’s application. His ruling reasonably balanced the probative value and prejudicial impact of the evidence. He was right that the evidence had at best marginal relevance. In my view, its probative value is dubious. There was no evidence that either Grant or Vivian was associated with a gang. So this was not a case of rival gangs. Indeed, several of the men in the Honda were not gang members. Moreover, Detective Bacchus’s proposed evidence was that Dr. Flea’s was outside the Jamestown Crips territory. And though the appellants were drug dealers, there was no evidence they sold drugs in Crips territory.
[155] Finally, whether evidence of Saez’s propensity for violence was even admissible was questionable. The appellants sought to introduce this evidence under the principle in Scopelliti. In Scopelliti, at pp. 535-36, this court said that when self-defence is an issue and the accused seeks to introduce evidence of previous acts of violence by the deceased unknown to the accused, there must be some other appreciable evidence of the deceased’s aggression on the occasion in question. Here, although Saez had acted aggressively in the market, and had taunted the appellants by flashing Vivian’s pendant, he was not an aggressor when Grant opened fire. Then, only Omar had flashed a gun.
[156] Against its dubious relevance, the potential prejudice of this evidence was high. Gang evidence in particular is likely to be highly prejudicial. Doherty J.A. summarized the risk of admitting this kind of evidence in R. v. Varga(2001), 159 C.C.C. (3d) 502 (Ont. C.A.), at para. 71: “Attacks on the character of the deceased are often easy to make and risk the conclusion that it is a defence to a murder charge to show that the deceased’s demise was a civic improvement.” Even in Scopelliti, Martin J.A. cautioned that unless there is evidence of the deceased’s aggression at the time of the incident, “the deceased’s bad character may be put forward improperly as a mere excuse for the killing under the pretext of evidencing his aggression.”
[157] I would not interfere with the trial judge’s discretionary ruling that the defence could not lead this “gang” evidence.
[158] For these reasons I would dismiss the conviction appeals.
D. The sentence appeals
(1) Introduction
[159] On their convictions for second degree murder, each appellant was sentenced to the mandatory life sentence. Under the Criminal Code, the minimum period of parole ineligibility for second degree murder is ten years. The trial judge sentenced Vivian to a period of parole ineligibility of 13 years and sentenced Grant to a period of parole ineligibility of 18 years.
[160] On Grant’s convictions for four counts of attempted murder, the trial judge imposed a life sentence.
[161] On Vivian’s convictions for four counts of aggravated assault, the trial judge imposed a sentence of 14 years less appropriate credit for pre-trial custody.
[162] The appellants appeal each of their sentences. Of course, when sentencing an individual offender, trial judges have a broad discretion and the exercise of that discretion is entitled to deference on appeal. An appellate court is justified in interfering with the sentence only if the trial judge imposed a sentence that is demonstrably unfit or committed an error in law or principle that had an impact on the sentence. An error in principle includes “the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor”: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 44-46.
[163] Here, in sentencing the appellants, the trial judge committed two errors in principle justifying the intervention of this court.
[164] First, in every sentence he imposed, except for the period of parole ineligibility for Vivian, the trial judge exceeded the Crown’s position. A trial judge is entitled to go beyond the Crown’s position if the sentence imposed is still reasonable. But a long line of authority in this court has held that when a trial judge proposes to do so, the trial judge should alert the parties and give them an opportunity to make further submissions. And ideally, if the trial judge still does impose a sentence in excess of a Crown’s position, the trial judge should explain the reason for doing so.
[165] Here, the trial judge did neither. He did not give the parties a chance to make further submissions and gave no reasons for going beyond the Crown’s position. His failure to do so amounts to an error in principle and entitles this court to reassess the appellants’ sentences: R. v. Hagen, 2011 ONCA 749, at para. 5; R. v. Menary, 2012 ONCA 706, 298 O.A.C. 108, at para. 3; R. v. Ibrahim, 2011 ONCA 611.
[166] Second, the trial judge failed to give any real weight to a highly relevant consideration, the appellants’ relative youth, and failed to give any weight to several other mitigating considerations for each appellant.
[167] The first error had an impact on the fairness of the sentencing proceedings; the second error had an impact on the fitness of the sentences themselves. In my view, the sentences imposed by the trial judge were excessive. I would allow each sentence appeal and impose sentences as follows:
• Period of parole ineligibility for Grant: 14 years.
• Period of parole ineligibility for Vivian: 11 years.
• Sentence on Grant’s convictions for attempted murder: 13 years.
• Sentence on Vivian’s convictions for aggravated assault: 10 years.
(2) The periods of parole ineligibility
[168] On a conviction for second degree murder, a trial judge may impose a period of parole ineligibility of between 10 and 25 years. When fixing the period, the Criminal Code directs a trial judge to take into account the jury’s recommendation, the nature of the offence and the circumstances surrounding its commission, and the character of the offender. A trial judge should also take into account the parties’ positions.
[169] For Grant, 11 jurors recommended a parole ineligibility period of 15 years, and one juror made no recommendation. Defence counsel recommended a period of 13 years, and Crown counsel recommended a period of 17 years. The trial judge exceeded all these recommendations and imposed a period of parole ineligibility for Grant of 18 years. He held that the jury’s recommendation was “manifestly inadequate”. He said nothing about the Crown’s recommendation.
[170] For Vivian, 11 jurors recommended a parole ineligibility period of 10 years and 1 day, and one juror made no recommendation. Defence counsel recommended the minimum period, 10 years, and Crown counsel recommended 15 years. The trial judge imposed a period of parole ineligibility for Vivian of 13 years. Again, he found the jury’s recommendation “manifestly inadequate”.
[171] The nature of the offences and the circumstances surrounding their commission call for periods of parole ineligibility above the minimum, more so for Grant because he was the shooter. The trial judge fairly characterized the murder of Saez as “outrageous, shocking and horrendous” and he noted that “the use of guns remains a scourge to the Toronto community”. He described the circumstances surrounding the shooting as follows:
• The accused Grant discharged his deadly firearm 13 times at a smaller car and its occupants and hit the car 12 times. Nine of the shots hit four occupants in the small car, and one occupant miraculously escaped being hit by a bullet.
• The accused Grant discharged 13 shots on a residential Toronto street in the middle of a Saturday afternoon. It was miraculous that the accused Grant did not kill any innocent bystanders.
• The accused Vivian positioned the SUV parallel to the smaller car so that the accused Grant could kill Jose Saez and endanger the lives of the others in the car.
• The murder of Jose Saez and the circumstances of its commission ranges in the upper scale of 85 to 95 percent of seriousness.
I accept the trial judge’s description of what occurred.
[172] But apart from noting there was “some hope of rehabilitation for each accused”, the trial judge said virtually nothing about the character of each appellant. He mentioned each of their ages and near absence of a criminal record but appeared to give neither any weight. And he said nothing about the several other mitigating considerations for each appellant.
[173] As I said earlier, Grant was only 21 and Vivian was only 20 when they committed this offence. Their youth alone argues for a shorter rather than longer period of parole ineligibility. Moreover, though both had been trafficking in drugs since their mid-teens, neither had a record for any previous offence of serious violence. Grant had a record for only a single simple assault, for which he received a suspended sentence and probation. Vivian had a record for only a previous youth offence, for possession of marijuana for the purpose of trafficking.
[174] Grant can point to several other mitigating considerations:
• He continues to have extensive support from his immediate and extended family. His mother, step-mother, father, and cousins have all visited him regularly while he has been in custody and they attended the trial.
• The prison parole authorities have said he has excellent prospects for rehabilitation.
• He has taken every available opportunity to improve himself over the course of his six and one-half years in custody, including by returning to school and getting excellent grades.
• He continues to play as active a role as he can in the life of his young child.
[175] Vivian, too, can point to several other mitigating considerations:
• He had a difficult upbringing. From a young age he often had to care for his younger siblings, as his mother, a drug addict, was frequently absent from the home because of her addiction.
• Before going to prison, he received good grades at school and participated in extracurricular sports activities.
• Before going to prison, he worked weekends for his step-father, who owned a mobile washing company for tractor trailers. The trial judge’s observation that Vivian “has never held a job except for trafficking in marijuana and crack cocaine” was simply wrong.
• After going to prison, he received strong support from his mother and his aunt and her partner. They attended court during the trial and wrote letters of support, which were filed during the sentencing proceedings.
[176] In the light of their youth and these other mitigating considerations, I think each appellant has a real potential for rehabilitation. Despite the highly aggravating circumstances surrounding the murder of Saez, these mitigating considerations warrant reducing the periods of parole ineligibility imposed by the trial judge. I would sentence Grant to a period of parole ineligibility of 14 years and Vivian to a period of parole ineligibility of 11 years. It would then be up to the parole board to determine when each appellant should be released.
(3) The sentence on Grant’s convictions for attempted murder
[177] Grant was convicted of four counts of attempted murder. His counsel asked for a 10-year sentence. The trial Crown asked for a 13-year sentence. Without any explanation for his decision, the trial judge far exceeded the Crown’s request and imposed a life sentence.
[178] For the same reasons I would reduce Grant’s period of parole ineligibility, I would also reduce his sentence for attempted murder. The trial Crown’s position was reasonable. I would set aside the life sentence and substitute a sentence of 13 years (less appropriate credit for pre-trial custody).
(4) The sentence on Vivian’s convictions for aggravated assault
[179] Vivian was convicted of four counts of aggravated assault. His counsel did not take a position on sentence. The trial Crown asked for eight to ten years. Again without explanation, the trial judge imposed a sentence of 14 years (less credit of 5 years and 10 months pre-trial custody).
[180] For the same reasons I would reduce Vivian’s period of parole ineligibility, I would reduce his sentence for aggravated assault. Here, as well, the trial Crown’s position was reasonable. I would set aside the sentence of 14 years and impose a sentence of 10 years (less appropriate credit for pre-trial custody).
E. Conclusion
[181] I would dismiss the conviction appeals. I would grant leave to appeal sentence, allow the sentence appeals and impose sentences as follows:
• Period of parole ineligibility for Grant: 14 years.
• Period of parole ineligibility for Vivian: 11 years.
• Sentence on Grant’s convictions for attempted murder: 13 years.
• Sentence on Vivian’s convictions for aggravated assault: 10 years.
Released: August 23, 2016 (“J.L.”)
“John Laskin J.A.”
“I agree. E.A. Cronk J.A.”
“I agree. R.G. Juriansz J.A.”
[^1] It is not a statutory discretion because it is not found in s. 640(2) itself. For a related discussion on the inherent jurisdiction of the court to grant a limited opportunity for reply, see R. v. Rose, [1998] 3 S.C.R. 262, at paras. 130-133.