Court of Appeal for Ontario
Date: January 12, 2017 Docket: C54573 Judges: MacPherson, Blair and Watt JJ.A.
Between
Her Majesty the Queen Respondent
and
Chas Ronald Berry Appellant
Counsel
Lance Charles Beechener and Eva Taché-Green, for the appellant
Eric Siebenmorgen, for the respondent
Heard
November 14, 2016
On Appeal
On appeal from the conviction entered by Justice John B. McMahon of the Superior Court of Justice, sitting with a jury, on December 15, 2010, and from the sentence imposed on February 3, 2011.
Endorsement
R.A. Blair J.A.:
Introduction
[1] Mr. Berry shot and killed Andrew Christie in the doorway of Mr. Christie's apartment on December 19, 2004. Although charged with first degree murder, he was convicted of second degree murder in December 2010, and shortly thereafter sentenced to life imprisonment without eligibility for parole for 17 years. He appeals both his conviction and sentence.
[2] The appellant testified at trial. He admitted shooting the deceased but claimed he was acting in self-defence; in the alternative, he relied on the defence of provocation. On appeal he raises the following grounds, arguing that the trial judge erred (i) in admitting evidence of an accomplice's manslaughter conviction in relation to the same killing; (ii) in admitting evidence of certain ante-mortem statements by the deceased: (iii) and in his instructions to the jury respecting post-offence conduct, self-defence, and provocation. With respect to sentence, he submits that the imposition of a 17-year period of parole ineligibility was unreasonable.
[3] For the reasons that follow, I would dismiss both the conviction and the sentence appeals.
Factual Background
[4] The appellant was 20 years old at the time of the shooting. The deceased was 23. They had met about a year earlier when both were in custody at the Toronto West Detention Centre. The evidence indicates that the two were associates in the drug trade, but had had a falling out shortly before the shooting.
[5] In December 2004, the deceased was living with his fiancée in an apartment in Scarborough. His fiancée, Sahsah Richards, was pregnant with their child at the time. The deceased was the friend of another man, Antonio Miller, who lived down the hall in the same building. Miller lived with his girlfriend, Elisha Berry, and her sister, Cashasha Berry. Elisha and Cashasha are the appellant's sisters and the appellant attended at the apartment building from time to time to visit them.
[6] The evidence indicated that both the deceased and appellant were involved in the drug trade, but there was conflicting evidence about the nature of their relationship. The appellant said that he sold crack for the deceased on consignment. Miller's evidence confirmed that the deceased was a drug dealer.
[7] The deceased's fiancée admitted that the deceased had been a user, but denied he was a dealer. She said he had stopped using drugs in the spring of 2004 after she threatened to leave him if he did not do so. She also said that the deceased told her the appellant tried to sell him drugs, but he refused. Guns and drug paraphernalia were found in the apartment of the deceased and his fiancée after the shooting.
The Price Chopper Encounter
[8] On the afternoon of the shooting, the appellant and the deceased had an encounter at a Price Chopper store when the appellant was out Christmas shopping with his sisters. The appellant testified that he and the deceased had an argument. The deceased wanted payment of $350 for drugs he had given the appellant to sell. The appellant did not have the money.
[9] On his return to the apartment, the deceased told his fiancée that he had met "Beef" (the appellant) at Price Chopper, that the appellant had tried to sell drugs to him, but that he had refused, and that the appellant had said "it was a war ting, it was sort of a disrespect thing and there [are] problems." The admissibility of these purported statements by the deceased is an issue on the appeal.
The Hallway Encounter
[10] In any event, another encounter followed later that same day between 15 and 45 minutes before the shooting. After returning from Price Chopper and speaking with his fiancée, the deceased went to Miller's apartment looking for the appellant. The appellant was not there. As it happened, however, the deceased met the appellant and his sisters (who were returning from their shopping) in the hallway as he was going back to his apartment. They had a discussion and began walking away from each other when the deceased turned back, walked up to the appellant, and according to Miller – who was watching through his apartment door peephole – pulled out a Glock handgun with a laser sight on it and pressed it against the appellant's neck.
[11] This incident went no further, but not surprisingly, the appellant was shaken by it. He testified he was frustrated, angry, lost and "humiliated in front of [his] family." He went into Miller's apartment to use the bathroom and told Miller not to worry and that "everything [was] cool." Miller thought the appellant looked shocked after the gun threat.
[12] The deceased returned to his apartment. He told his fiancée he had met the appellant in the hallway and that the appellant had reiterated his statement that "it's a war ting" and told him not to be around the building. He did not tell his fiancée about threatening the appellant with a gun.
[13] According to Miller, the deceased – in both a telephone conversation and a subsequent discussion in the stairwell – offered Miller his apologies for his treatment of the appellant in the hallway and said that he would speak to the appellant later.
The Shooting
[14] The appellant testified that he left Miller's apartment to "get some air" and to go downstairs to meet someone for marijuana. Then things just happened quickly.
[15] The appellant met another drug dealer – "Joey" – in the stairwell. Joey happened to have a gun and offered the gun to the appellant, if he (the appellant) thought he needed it or should have a gun for protection. The appellant happened to accept the gun.
[16] Just then another man who lived on the same floor, Alexander Jovanovski, was leaving his apartment and came across the appellant and Joey in the stairwell. Jovanovski's evidence was that the appellant politely asked him if he would step into the hallway so that he could speak to him; the appellant then asked Jovanovski to "go to Apartment 305 and tell [the deceased] to come outside in the hallway, he had someone to speak to him".
[17] Jovanovski agreed. The appellant testified that he made the request because he wanted to discuss the prior confrontation with the deceased to clear the air. Although the appellant said the gun was in his pocket, Jovanovski testified that the appellant had his left hand behind his back and he thought that the appellant was holding a knife or a gun. In any event, Jovanovski knocked on the door and, when the deceased's fiancée answered, asked to speak to the deceased.
[18] At this time, the appellant had positioned himself so that he was standing against the wall at the side of the door and was concealed from the sight of anyone in the doorway. According to Jovanovski the appellant "revealed himself" as the deceased approached the door. The appellant shot the deceased six times, four times in the head, once in the neck and once in the chest – most at close range. The chest and head wounds, on their own, were "inevitably fatal". Christie died almost immediately.
[19] At trial, witnesses provided conflicting testimony about what actually occurred during the shooting. The evidence of the deceased's fiancée was that, although she and the deceased tried to close the door, the appellant "came in charging", shooting with his right hand and pushing the door open with his left.
[20] Although Jovanovski never actually saw a gun in the appellant's hand, his evidence was that, when the appellant revealed himself, the deceased "kind of tried to put up his hands like as a defence" and he heard the firearm discharge.
[21] The appellant testified, on the other hand, that when Jovanovski called the deceased to come out, he (the appellant) asked the deceased if he could talk to him, but the deceased became threatening and looked like he was reaching for his waistline. Because of the previous incident with the gun in the hallway, the appellant believed that the deceased was reaching for a gun. He acted in self-defence and "started opening fire". He doesn't remember what happened immediately afterwards.
Subsequent Events
[22] What happened immediately afterwards was that the appellant fled the building, threw the gun away in a sewer and disappeared. He was not arrested on these charges for another one and one-half years, when he was taken into custody on an entirely unrelated matter. Once identified, the appellant was charged with first degree murder.
[23] When the police searched the apartment following the shooting they seized two firearms (a 12 gauge sawed-off shotgun and a 9 mm Glock handgun containing live ammunition), other ammunition, a box for a small scale (the scale was found outside the apartment building) and other paraphernalia related to the drug trade. There was evidence that persons close to the deceased and his fiancée had disposed of various other "drugs and stuff" from the apartment.
[24] Jovanovski was arrested the day of the shooting and charged with first degree murder. In August 2005, he pled guilty to manslaughter and received a one-year conditional sentence in addition to 200 days of pre-trial custody. Jovanovski did not respond to a subpoena to testify at trial and could not be located for apprehension under a material witness warrant issued by the trial judge. The Crown sought to enter the transcript of his evidence at the preliminary hearing for the truth of its contents. The defence contested the admissibility of only one part of the transcript: the evidence relating to Jovanovski's plea of guilty and conviction for manslaughter and the sentence he received. The trial judge admitted this, a ruling that is contested on the appeal.
The Characteristics of the Appellant
[25] At trial, the defence called a psychologist, Dr. Pollock, who testified as to the appellant's reduced cognitive abilities and his personality traits. In terms of the appellant's cognitive abilities, Dr. Pollock testified that he was of "modest intelligence", with an IQ in the 5th percentile (meaning that 95% of individuals his age would score higher). In terms of his personality, it was Dr. Pollock's opinion that the appellant was anxious, self-centred, emotionally detached, socially awkward, and suspicious of other people. Because of these characteristics, persons with the appellant's profile are easily slighted and are particularly sensitive to perceived threats or provocation; they have a tendency to misinterpret their social perceptions and experience challenges trying to solve difficult problems in times of stress.
[26] This evidence was led in support of the appellant's claim that he had acted in self-defence or as a result of provocation.
Issues on Appeal
[27] The appellant raises the following issues on appeal:
(a) Was Jovanovski's manslaughter plea and conviction improperly left to the jury?
(b) Were the deceased's ante-mortem statements to his fiancée improperly admitted into evidence?
(c) Did the trial judge err in his instructions to the jury with respect to:
(i) post-offence conduct?
(ii) self-defence?
(iii) provocation?
(d) Was the imposition of a 17-year period of parole ineligibility reasonable?
[28] We called on the Crown only with respect to the admission into evidence of the accomplice's manslaughter conviction (issue (a)). I will deal briefly with all issues, however.
Discussion and Analysis
Jovanovski's Guilty Plea and Conviction
[29] Jovanovski did not respond to a subpoena to testify at trial nor were the police able to apprehend him after the trial judge issued a material witness warrant. The Crown therefore applied to have his evidence at the preliminary inquiry read to the jury as proof of the truth of its contents. The defence accepted that the necessity and reliability criteria of the principled exception to the hearsay rule were met, and did not object except for one part. The defence argued that the portion of the transcript referring to Jovanovski's plea of guilty and conviction for manslaughter and the sentence he received should not be read to the jury.
[30] The Crown's submission at trial was that the jurors would lack context and be left in a vacuum – with "an elephant in the room", as counsel put it – if they were deprived of that information, i.e., they would be left asking themselves what had happened to the accomplice. The Crown did not seek to introduce the evidence for purposes of attacking Jovanovski's credibility.
[31] Defence counsel accepted the elephant-in-the-room image, but sought to turn it on its head and to the appellant's advantage by arguing that "[t]he elephant is now in the room in the shape of this big fat manslaughter conviction which is going to stop them from weighing properly [the] defences of provocation and self-defence". He submitted that, if the jurors had to know that Jovanovski had been arrested, they could simply be told that he had been dealt with elsewhere. Otherwise it would be unfair to the appellant for two reasons: first, because the jurors might assume that a judge had given a seal of approval to the particular set of facts that Jovanovski had adopted at the time of the plea; and secondly, because, once they heard that Jovanovski, a minor player, had pled guilty to manslaughter in connection with the shooting they might well draw the impermissible inference that the appellant – the admitted shooter – must be guilty of something, thereby nullifying at least the self-defence defence.
[32] The trial judge declined to edit the evidence of the guilty plea and conviction out of what was read to the jury.
[33] In the trial judge's view, this evidence was important for credibility purposes. As he said, the jury could not assess the credibility of Jovanovski's evidence in a vacuum: "the status of an accomplice's charge is a vital factor in assessing the credibility of the accomplice witnesses". The trial judge was satisfied, therefore, that the evidence of Jovanovski's guilty plea and conviction and the sentence he received was highly relevant and material to Jovanovski's credibility which, in turn, was an important factor for the jury to consider in its determination of the main issues of self-defence, provocation and (if intent to commit murder were established) planning and deliberation.
[34] It was open to the trial judge to adopt this approach, in my opinion, because the guilty plea and conviction may well have provided the strongest basis upon which Jovanovski's credibility – and therefore his evidence, which was central to the Crown's case – could be attacked by the defence. In this respect, the decision was favourable to, rather than prejudicial to the appellant.
[35] At the same time, however, the trial judge was very much alive to the need to balance the probative value of the contested evidence against its prejudicial effect. He recognized the settled law that the guilty plea of an accomplice or co-accused has no relevance to the ultimate issue of guilt or innocence of the accused: see R. v. Berry, [1957] O.R. 249 (C.A.); R. v. Buxbaum, 33 O.A.C. 1 (C.A.), leave to appeal to S.C.C. refused, [1989] S.C.C.A. No. 239; R. v. Lessard, 50 C.C.C. (2d) 175 (Que. C.A.); R. v. Caesar, 2016 ONCA 599, 350 O.A.C. 352. In the course of his thorough probative value/prejudicial effect analysis, the trial judge gave careful consideration to defence counsel's argument about the prejudicial impact of the accomplice's guilty plea.
[36] The trial judge fully understood the danger that jurors might use the guilty plea to draw impermissible inferences. He concluded, nonetheless, that the risk could be effectively managed by clear instructions to the jury about the permissible and impermissible uses to which the evidence relating to the guilty plea could be put. On that basis he was satisfied that the probative value of the evidence outweighed its prejudicial effect and ruled that it was admissible.
[37] In keeping with that reasoning, the trial judge did give very clear instructions, both before Jovanovski's evidence was read to the jury and in his charge to the jury. In his mid-trial instruction, he said:
Mr. Jovanovski's guilty plea, and this is very important, has absolutely no bearing on whether Mr. Berry is guilty of first-degree murder or any included offence. You must not think that because Mr. Jovanovski has pleaded guilty, Mr. Berry must be guilty of something too. Mr. Jovanovski may have any number of reasons for pleading guilty and any number of reasons for testifying at Mr. Berry's trial through being called by the Crown. The fact Mr. Jovanovski pleaded guilty to manslaughter and received a particular sentence is only relevant in assessing Mr. Jovanovski's credibility. [Emphasis added.]
[38] The trial judge repeated this instruction in essentially the same terms in his charge to the jury. Indeed, he reinforced it by adding the following:
Mr. Jovanovski may have had [a] great number of reasons for pleading guilty and any number of reasons for testifying for the Crown at Mr. Berry's trial. He may have pleaded guilty so he could get out of jail. He may have pleaded guilty because he took responsibility for his actions. It is for you to decide how much or little weight you put on Mr. Jovanovski's guilty plea in assessing his credibility. Remember, his guilty plea has zero relevance in your determination of whether Mr. Berry is guilty of any offence. [Emphasis added.]
[39] These sharp and clear-cut directives reminded the jury that Jovanovski may well have had his own motives for the plea and for giving the evidence he gave, while at the same time leaving no doubt that the jury was not to use the evidence of the guilty plea to determine any issues of guilt or innocence, but only for purposes of assessing the credibility of Jovanovski's evidence.
[40] In addition, the trial judge provided a strong Vetrovec-like charge that was to the appellant's advantage in terms of the jury's assessment of Jovanovski's credibility and evidence. In this portion of the charge, he directed the jurors to consider whether Jovanovski had a motive to be untruthful or a reason to downplay his involvement and exaggerate the appellant's role. He told them there was good reason to look at Jovanovski's evidence "with the greatest care and caution" and that it would be dangerous for them to rely on that evidence without confirmation from some other source.
[41] In view of the foregoing, the jury could not have been confused or left in any doubt about the two important features of Jovanovski's guilty plea and sentence from the defence point of view: first, that the evidence could not be used for the purpose of determining the appellant's guilt or innocence, but only for the purpose of assessing his credibility; and secondly, that Jovanovski may have had a motive to fabricate his evidence because he had received favourable treatment in his own case, in exchange for his testimony against the appellant.
[42] The exercise of weighing the probative value of proffered evidence against its potential prejudicial effect in the course of the dynamics of a trial is a discretionary task for which trial judges are particularly well-suited. Their decisions in that regard are entitled to deference. See, for example, R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 110. Absent an error of law or principle, a material misapprehension of the evidence, or a palpable and overriding error of fact in the exercise of that discretion, there is no basis for an appellate court to interfere.
[43] I see no such error here, and would not give effect to this ground of appeal.
The Deceased's Ante-Mortem Statements
[44] The Crown successfully brought a pre-trial motion for permission to adduce three different statements made by the deceased to his fiancée, Richards, prior to his death. They are alluded to above but may be summarized as follows:
Sometime in the months before the shooting, Richards saw the deceased with the appellant. The deceased later told her that the appellant asked him to sell drugs for the appellant;
On the day of the shooting, after the Price Chopper encounter, the deceased told his fiancée that the appellant wanted him to sell drugs and that when he refused, the appellant responded that it was "a war ting";
Upon returning to his apartment after the incident in the hallway, between 15 and 45 minutes before the shooting, the deceased told his fiancée that the appellant had again said that it was "a war ting" and warned the deceased not to be around the building.
[45] The trial judge admitted the statements. Recognizing that they were hearsay, and presumptively inadmissible, he concluded that they met the necessity and reliability criteria for admission under the principled exception to the hearsay rule. Balancing their prejudicial effect against their probative value, he found that although the statements were prejudicial to the appellant (they reflected discreditable conduct, drug dealing, on his part) they were highly probative. The trial judge noted the statements were relevant to the provocation issue and possibly self-defence, and to animus and motive going to the issues of intent, provocation and planning and deliberation, as well as providing narrative and context. Their probative value therefore outweighed their prejudicial effect.
[46] The appellant argues that the statements were unreliable and should not have been admitted. He submits that the trial judge gave insufficient recognition to the fact that the deceased had a compelling motive to lie to his fiancée about the drug dealing in order to convince her – a suspicious partner, pregnant with his child, who had threatened to leave him – that he was no longer dealing in drugs. The appellant also submits that the trial judge erred when he failed to analyse the factors relating to threshold reliability in the context of the narrator, the deceased's fiancée, whose reliability was seriously compromised on the evidence.
[47] However, the trial judge was alive to the issue of whether the deceased had a motive to lie to his fiancée. He dealt with it at length in his admissibility ruling. He noted that the statements were spontaneously volunteered and not made by the deceased in response to any queries by his fiancée or because he was required to offer any explanation to her about his conduct. In the end, the trial judge concluded that the deceased would not have had a motive to concoct an interaction with the appellant and a story about being asked to sell drugs, when such a story would only fuel his fiancée's suspicions. These findings were open to him on the evidence.
[48] In submitting that the trial judge erred by failing to consider the unreliability of the deceased's fiancée (the narrator) in his analysis of the threshold reliability, the appellant relies on an excerpt from this Court's decision in R. v. Humaid, 81 O.R. (3d) 456 (C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 232. In that case Doherty J.A. said, at para. 57:
There is one caveat to what I have said. A trial judge has a residual discretion to exclude evidence where its potential probative value is exceeded by the potential prejudicial effect of that evidence. This discretion extends to what would otherwise be admissible hearsay evidence. There may be cases where the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value. In such cases, and I think they would be relatively rare, a trial judge could conclude that the narrator's evidence was so incredible or unreliable as to necessitate the exclusion of the evidence based on the exercise of his or her residual discretion. [Citations omitted.]
[49] I make three observations about this statement.
[50] First, the passage cited provides a caveat to what was said earlier in the reasons. What was said earlier in the reasons was that the trial judge in Humaid had erred in excluding the statement on the basis that the credibility of the narrator was relevant to the threshold reliability analysis under the principled exception to the hearsay rule. The general principle is that where, as here, the narrator of the hearsay statement is available for cross-examination at trial, the narrator's credibility is a matter that usually can be left safely to the trier of fact to consider: Blackman, at paras. 50-51; Humaid, at paras. 50-51; R. v. Duguay, 2007 NBCA 65, 320 N.B.R. (2d) 104, at paras. 48 and 53.
[51] Secondly, the circumstances giving rise to the application of the Humaid caveat "[will] be relatively rare". Thirdly, whether to give effect to the principle is a matter for the exercise of the trial judge's residual discretion.
[52] Here, the trial judge was not asked by defence counsel to exercise his residual discretion and to apply the Humaid caveat. In his factum and oral submissions on the voir dire, Crown counsel relied on Humaid and Blackman to argue that the reliability of Richard's testimony should be left to the jury. Defence counsel did not respond, except to say that he "appreciate[d] the Crown's submission that discrepancies in the narration of the statement may be addressed by … cross-examination of Ms. Richards". Instead, defence counsel focussed on the reliability of what the deceased had actually said and the difficulties arising from the fact that the deceased was not alive to be cross-examined. The trial judge might be forgiven for not having specifically directed his mind to the Humaid caveat in such circumstances.
[53] Nor, in my view, would the circumstances have justified him in applying the Humaid caveat in any event. The deceased's fiancée was available for cross-examination at trial but she did not testify on the voir dire. At the time of his ruling, then, the trial judge had only the transcript of her evidence at the preliminary inquiry to consider. Viva voce testimony need not be the only mode of proof on a voir dire. However, it would be an exceedingly rare case, in my opinion, where, without the opportunity to see and hear the narrator's testimony, a trial judge would be in the position to rely on the Humaid caveat and make a "no probative value" finding – based on the narrator's lack of credibility – to exclude the statement. This is not one of those cases.
[54] The deceased's fiancée was effectively cross-examined at trial and the issues relating to the ultimate reliability of her testimony were adequately dealt with in the clear mid-trial instruction and in the final instructions given by the trial judge. Amongst other things, the jurors were told that they should look at her demeanour and the circumstances in which the statements took place and at "anything else that makes [her] story more or less believable"; that her evidence in this regard may be less reliable than the evidence given by others; and that they should consider whether she would "have any reason to make up the story about what Andrew Christie said".
[55] All the evidence relating to the firearms, ammunition and drug paraphernalia found by the police in the apartment after the shooting, and how much she was or wasn't aware of those items, was canvassed during the charge to the jury. Both the Crown's concession that her disavowal of knowledge of the drugs and weapons in the apartment "may be found to be less compelling" and its position that a person in her position might be understandably concerned about potential criminal consequences (thereby giving rise to a motive to lie) were made clear to the jury. As was the defence position that her evidence disavowing such knowledge and the knowledge that the deceased was a drug dealer was completely unbelievable.
[56] In the face of all this, it cannot be said that the jurors would be unaware of the need to probe whether the deceased's fiancée had a motive to lie and of the need to consider the reliability and believability of her evidence carefully.
[57] The deceased's ante-mortem statements were properly admitted into evidence and the jury was adequately instructed on the issues surrounding the ultimate reliability of his fiancée's testimony.
Jury Charge
(1) Post-Offence Conduct
[58] The Crown sought to adduce evidence that the appellant had flown the scene and evaded arrest for 18 months as post-offence conduct relevant to the issue of self-defence. Defence counsel ultimately conceded that the evidence was relevant to that issue, but to that issue alone. The trial judge ruled that the Crown could lead the evidence but that its use would be limited to determining whether the homicide was culpable (i.e., whether the defence of self-defence had been made out), and that it was not relevant to determining the level of culpability (first degree murder, second degree murder, or manslaughter).
[59] The appellant then testified that he had fled and an agreed statement of facts was read in regarding the post-offence conduct.
[60] On appeal, the appellant concedes that the trial judge properly charged the jury on post-offence conduct by telling the jurors that the post-offence conduct could not be used to prove state of mind, planning and deliberation or to disprove provocation. His complaint is that, when the trial judge instructed the jury on state of mind itself, he invited the jurors to consider "all of the evidence" on several occasions, without re-cautioning them about the irrelevance of the post-offence conduct with respect to the appellant's state of mind. This failure undermined the earlier admonition not to use that evidence on the issue of intent, the appellant says.
[61] I do not find this argument persuasive.
[62] The trial judge instructed the jury that:
Evidence of what Mr. Berry did after the shooting may or may not help you decide whether he caused Mr. Christie's death unlawfully. It may or may not help you decide whether the Crown has proven beyond a reasonable doubt the accused was not acting in self-defence and the killing was unlawful.
The after the fact conduct cannot be used by you to determine whether the Crown has proved that the accused had the state of mind for murder, that Mr. Berry was not provoked, and that the killing was both planned and deliberate.
[63] These instructions were clear, specific and direct. They left no room for confusion. Moreover, the trial judge did not simply direct the jury to consider "all of the evidence" in his state of mind instruction. He carefully limited the instruction by telling the jurors to "take into account all of the evidence that throws light on [the appellant's] state of mind at the time the offence was committed" (emphasis added). This qualified instruction was given at least twice during this portion of the charge.
[64] The jury had been told, clearly, before this that the post-offence conduct could not be considered in determining the appellant's state of mind. They would have understood equally clearly that such evidence was not part of "all of the evidence that throws light on [the appellant's] state of mind". Post-offence conduct evidence had already been excluded from that category.
[65] There was no error in the trial judge's charge to the jury on this point, in my opinion.
(2) Self-Defence
[66] At trial the defence requested a modified reasonable person charge with respect to the elements of self-defence. Counsel asked the trial judge to instruct the jurors that in considering the response of a reasonable person in such circumstances – as well as when considering the appellant's actual subjective state of mine – they were entitled to take into account Dr. Pollock's evidence regarding the appellant's "diminished intelligence" and his particular "psychological complexion".
[67] Defence sought this instruction on the basis that Dr. Pollock's evidence showed the appellant's diminished intelligence may have caused his excitable and distrustful personality which, in turn, contributed to his perceptions and reactions during the events. How the reasonable person would have reacted must therefore be viewed through the lens of a person bearing these similar characteristics, the argument went.
[68] After reviewing this Court's decision in R. v. Nelson, 8 O.R. (3d) 364 (C.A.), the trial judge agreed to charge the jury on the basis that the jurors were entitled to consider both the appellant's diminished intelligence and his psychological makeup on the issue of the appellant's subjective state of mind, in relation to self-defence, and that they could consider his diminished intelligence but not his psychological makeup as part of the objective test. His charge reflected this decision.
[69] The appellant submits the trial judge erred by refusing to permit the jury to consider those aspects of the appellant's personality or psychological makeup that were affected by his diminished intelligence as part of the objective component of the analysis, thereby undermining the appellant's defence of self-defence.
[70] I would not give effect to this submission.
[71] First, from an evidentiary point of view, I am not satisfied that Dr. Pollock's testimony established a sufficient causal connection between the appellant's "border-line IQ"/"modest intelligence" (5th percentile), and the appellant's personality characteristics the defence sought to highlight as possible explanations for his reaction (being anxious, excitable, distrustful of others), to support the submission that the appellant's diminished intelligence affected his personality traits. Dr. Pollock acknowledged that, while an intelligence test provides an indication of what a person's optimal level of functioning is, under clinical observations, "how a person applies their intelligence in day-to-day life when they're confronted with problems … or stressful circumstances may be another thing and that is determined more by an individual's personality."
[72] Both for these reasons and on a broader basis, I am not persuaded that the trial judge was wrong, in the circumstances of this case, in excluding the evidence of the appellant's individual personality traits from the objective portion of the analysis. The authorities have held that a condition of arrested intelligence or a mental condition may be taken into account by the trier of fact in a self-defence analysis: see, for example, Nelson (arrested intellectual and mental development caused by a motor vehicle accident); R. v. Kagan, 2004 NSCA 77, 224 N.S.R. (2d) 118 (Asperger's syndrome, a mental condition); R. v. Lavallee, [1990] 1 S.C.R. 852 (battered-wife syndrome). The underlying rationale of authorities like Nelson and Kagan is that the accused's faculties were diminished through no fault of their own in a way that took the impairment "out of the broad band of normal adult intellectual capacity" (Nelson, at p. 383). While Lavallee may be somewhat different, similar considerations were in play.
[73] There is nothing in the appellant's psychological makeup here to indicate that his particular traits are attributable to something beyond his control. In order to satisfy the third element of self-defence under s. 34(2) of the Criminal Code, the appellant's belief that he had no other option but to shoot the deceased must be objectively reasonable; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 121. To permit the appellant to rely on the psychological makeup he puts forward here as an explanation for his actions would improperly conflate the subjective and objective components of the test. As Doherty J.A. observed in R. v. Pilon, 2009 ONCA 248, 247 O.A.C. 127, at para. 75:
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 [lie] 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. [Emphasis added.]
[74] The trial judge expressed a similar sentiment here. I would not interfere with his decision to exclude from the jury's consideration under the objective component of the s. 34(2) test the evidence relating to the appellant's particular psychological makeup.
(3) Provocation
[75] Under s. 232 of the Criminal Code, homicide that would otherwise be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. There are two essential components to the requirements of s. 232, as Charron J. explained in R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 23 – one objective, the other subjective. Citing with approval the statement of Cory J. in R. v. Thibert, [1996] 1 S.C.R. 37, she said:
In my view, the requirements of s. 232 are most usefully described as comprising two elements, one objective and the other subjective. As Cory J. for the majority of the Court put it in Thibert:
First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control as the objective element. Second, the subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool.
[76] In this case, the act relied on as provocation was the hallway incident that took place between 15 and 45 minutes before the shooting and during which the deceased put a gun to the appellant's neck.
[77] The trial judge instructed the jury that, in general terms, provocation involves a loss of control in response to a wrongful act or insult by the deceased, and that it is a concession to human frailty, but one that is subject to certain specific requirements. He directed the jurors to assess the evidence in relation to the Tran / Thibert criteria – although dividing them into four questions instead of two – through the lens of both an "ordinary person" test (the objective component) and an "accused person" test (the subjective component).
[78] In applying the accused person test – i.e., in tackling the suddenness of the reaction and whether the appellant's passion had time to cool – the trial judge told the jurors they could consider the appellant's individual characteristics and personal reaction (i.e., both his intellectual limitations and his particular psychological makeup as characterized by Dr. Pollock). But in applying the ordinary person test – i.e. whether the wrongful act or insult was sufficient to deprive the ordinary person of the power of self-control – the trial judge told them they could not do so.
[79] The appellant contends that the evidence of the appellant's intellectual limitations and of his insecurities and general distrust of people was important to provide the "context" for the ordinary person inquiry, without the "over individualization" of that inquiry and therefore should have been left with the jury on this issue.
[80] I do not accept this submission.
[81] In the circumstances of this case, the evidence pertaining to the appellant's intellectual capacity and his psychological makeup was not necessary to "contextualize" the wrongful act or insult for the jury in the ordinary person analysis. It went simply to the appellant's individual personal characteristics. The trial judge provided the appropriate contextualization when he told the jury:
In this case, an ordinary person would be someone of the same age and sex as Mr. Berry who shares with him those other characteristics that would give the wrongful act or insult special significance in the circumstances. The ordinary person would also be one who has experienced the same series of acts or insults as Mr. Berry and shares the past history and relationship between Mr. Berry and Andrew Christie.
An ordinary person is not exceptionally excitable or disposed to fight and has and exercises those powers of self-control that all of us expect our fellow citizens to exercise in our society today.
[82] Defence counsel did not object to this portion of the charge.
[83] Although the appellant relies on Tran for his submission, Charron J. was particularly careful in that case to emphasize that "care must be taken not to subvert the logic of the objective test" because "if all of the accused's characteristics are taken into account, the ordinary person becomes the accused" (para. 33; emphasis in original). She concluded her analysis by saying:
Personal circumstances may be relevant to determining whether the accused was in fact provoked – the subjective element of the defence – but they do not shift the ordinary person standard to suit the individual accused. In other words, there is an important distinction between contextualizing the objective standard, which is necessary and proper, and individualizing it, which only serves to defeat its purpose.
[84] Without concluding that there can never be a situation where diminished mental capacity may be relevant to the ordinary person inquiry in the provocation analysis, I am satisfied that the trial judge did not err on this record by excluding from that inquiry in this case the evidence of Dr. Pollock regarding the appellant's intellectual limitations and his personal psychological makeup.
[85] I would not give effect to this ground of appeal.
Sentence
[86] In my view, the trial judge did not err in imposing a 17-year period of parole eligibility in the circumstances of this case.
[87] Defence counsel sought a period of parole ineligibility of between 12 and 15 years; the Crown requested 18 to 20. The trial judge had non-binding recommendations from eight jurors ranging from 10 to 25 years (four jurors made no recommendations).
[88] The appellant was a young man (20) at the time of the offence and had had a difficult youth and upbringing. He is a person of modest intelligence. Nonetheless, the appellant has a record of continuing violence both as a youth and as an adult, including convictions for robbery, a conviction for assault with a weapon and the imposition of a firearms prohibition. Those acts of violence were not deterred by his prior incarcerations. The trial judge was entitled to view the offence as a near first degree murder in spite of the jury's acquittal on the charge of first degree murder.
[89] The appellant submits that the trial judge erred by "double counting" this aggravated nature of the offence in his consideration of the appropriate period of parole ineligibility.
[90] I disagree.
[91] While the trial judge did reference the nature of the offence twice in his consideration of the aggravating factors, he did so in two different contexts. The first related to what he saw as the "planning" elements of the shooting; the second, to the "execution" nature of the shooting. Both considerations were open to him. Having found that there were elements of planning in the way in which the appellant armed himself, elicited the aid of Jovanovski, and then concealed himself at the side of the door preparatory to carrying out the attack, the trial judge was not precluded from considering the number and location of the gun-shot wounds on the deceased's body and concluding that the shooting could also be characterized as a "brutal execution". Both these features of the crime were compelling aggravating factors as were others, including the use of an illegal firearm when the accused was subject to a firearms prohibition order.
[92] The 17-year period of parole ineligibility imposed here was entirely fit, in my view. In any event, the trial judge's decision as to sentence is entitled to considerable deference, and, there being no error in law or principle, I see no basis for interfering with it: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
Disposition
[93] For the foregoing reasons, I would dismiss the appeal.
[94] I would grant leave to appeal sentence but dismiss the sentence appeal as well.
Released: January 12, 2017
"Robert A. Blair J.A."
"I agree J.C. MacPherson J.A."
"I agree David Watt J.A."
Footnotes
[1] R. v. Vetrovec, [1982] 1 S.C.R. 811.
[2] Doherty J.A. arrived at this conclusion on two bases: (i) that the narrator's credibility did not form part of "the circumstances surrounding the making of the statements" (see R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144); and, (ii) that, on a principled basis, the narrator was available at trial for cross-examination and issues regarding her credibility could safely be left to the trier of fact. In R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, Charron J. noted that the first of these grounds had been overtaken by the Supreme Court of Canada's decision in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, but held that the second basis for the decision in Humaid remained valid.
[3] Although nothing turns on it for purposes of the analysis on the appeal, this case is governed by the definition of what constituted "provocation" as set out in the former s. 232(2) of the Criminal Code that was repealed and replaced by the current s. 232(2) on July 17, 2015. Hence the reference to "wrongful act or insult."
