Court of Appeal for Ontario

Date: September 28, 2017

Docket: C60601 & C60607

Judges: Gillese, van Rensburg and Brown JJ.A.

DOCKET: C60601

Between

Her Majesty the Queen

Respondent

and

Jemaine Phillips

Appellant

DOCKET: C60607

And Between

Her Majesty the Queen

Respondent

and

Drai O'Hara-Salmon

Appellant

Counsel:

Delmar Doucette, Andrew Furgiuele and Angela Ruffo, for the appellant, Jemaine Phillips

Richard Litkowski and Catriona Verner, for the appellant, Drai O'Hara-Salmon

John Patton, for the respondent

Heard: April 4-5, 2017

On appeal from the convictions entered on January 10, 2015, and the sentence imposed on January 10, 2015, by Justice Andrew J. Goodman of the Superior Court of Justice, sitting with a jury.

Brown J.A.:

PART I - OVERVIEW

[1] In the early morning hours of December 27, 2011, the appellant, Jemaine Phillips, shot and killed Said Hadbai with a sawed-off shotgun in a parking lot across the street from Jack's Bar, in London, Ontario. At the time, Phillips was beside his friend, the appellant, Drai O'Hara-Salmon, who was preparing to have a "one-on-one" fight with Hadbai.

[2] Phillips and O'Hara-Salmon were convicted by a jury of first-degree murder. Both appeal their convictions.

[3] Phillips and O'Hara-Salmon advance multiple grounds of appeal. Phillips' main grounds of appeal focus on the trial judge's (i) failure to leave the partial defence of provocation with the jury, (ii) exclusion of expert psychiatric evidence that Phillips argued was relevant to his defences and the issue of whether the killing of Hadbai was planned and deliberate, and (iii) error in using the new s. 34 of the [Criminal Code, R.S.C. 1985, c. C-46](https://laws-lois.justice.gc.ca/eng/acts/C-46/) to charge the jury on self-defence, instead of the old s. 34(2).

[4] As his main ground of appeal, O'Hara-Salmon argues the trial judge failed to charge the jury properly on his mode of participation under ss. 21(1) and (2) of the Criminal Code for the offence of first degree murder.

[5] For the reasons set out below, I would dismiss both appeals.

I. SUMMARY OF EVENTS

[6] At the time of the shooting, Phillips and O'Hara-Salmon were 18 and 19 years old respectively.

[7] At trial, Phillips testified; O'Hara-Salmon did not.

[8] Two series of events – one involving a dispute over a girlfriend and the other concerning drugs – led them to meet outside of Jack's Bar in the early morning hours of December 27, 2011 and then to cross the street to the parking lot where Phillips ultimately shot and killed Hadbai.

A. The events involving a dispute over a girlfriend

[9] On the evening of December 26, 2011, O'Hara-Salmon went to Jack's to drink with friends. There he encountered Hadbai. There was a history between O'Hara-Salmon and Hadbai, stemming from their sequential relationships with Brittney Knowles.

[10] O'Hara-Salmon and Knowles dated in 2008, but they broke up in April 2009. A few months later, Knowles began a two-year relationship with Hadbai, during which she periodically saw O'Hara-Salmon. In the fall of 2010, Knowles spent time with O'Hara-Salmon throughout "a week or two", during which they were physically intimate, although she continued to date Hadbai.

[11] Knowles and Hadbai broke up in June 2011, whereupon Knowles re-established contact with O'Hara-Salmon. During the course of their communications, O'Hara-Salmon wrote Knowles a letter stating, in regards to Hadbai, that he intended to "wet him up" - slang meaning to cause bleeding and make the victim wet. Knowles told the police that Hadbai, for his part, was obsessed by rage against O'Hara-Salmon and once told her that if he met O'Hara-Salmon, "it would be bad".

[12] At some point in the evening of December 26, 2011 O'Hara-Salmon was picked up by Phillips and his girlfriend, Jessica Lovell, taken to his home, and then dropped off in front of Jack's, where O'Hara-Salmon intended to meet up with two friends, Kenzie Sabourin and Rigoberto Solano.

[13] O'Hara-Salmon joined the line to enter Jack's. He ended up standing behind Hadbai and his friend, Yasin Amir. There was minimal contact between them; Knowles was not mentioned. They all entered the bar at 12:41 a.m. on December 27 and went their separate ways.

[14] Amir and Hadbai parted company for a while in Jack's. According to Amir, when they linked back up Hadbai described a confrontation he just had with O'Hara-Salmon. Thereafter, Amir and Hadbai repeatedly went over to where O'Hara-Salmon was drinking with his friends. Hadbai and O'Hara-Salmon exchanged words about Knowles. Evidence from some of O'Hara-Salmon's friends suggested Hadbai was the one initiating the exchanges. However, Amir testified that Hadbai told him O'Hara-Salmon "was saying…like 'I don't fight niggers. I shoot them'".

[15] At 12:53 a.m., O'Hara-Salmon sent a text to Phillips: "Get the thing kp is here." To put the text in context requires describing a series of earlier events involving Phillips.

B. The events involving drugs

[16] Phillips' friend Sabourin knew a drug dealer by the name of Redur Tawfiq Mohamed, whose nickname was "KP". In October or November 2011, Sabourin obtained about four ounces of cocaine from KP to sell on a consignment basis. Phillips agreed to keep the drugs at his girlfriend, Lovell's place. Sabourin assured Phillips he would not have to hold the drugs very long as Sabourin would sell them quickly.

[17] Several weeks passed. Sabourin did not sell the drugs. Phillips said he became concerned about his safety, worried KP might do something. Phillips shared his concern with his friend, Solano, during a private conversation in November. Phillips said they needed to hurry up and move the drugs because he felt KP would not be happy about the delay. Phillips described himself as nervous, scared, and afraid at that point.

[18] About a week later, in early December, Solano gave Phillips a sawed-off shotgun with a clip and two shells. Phillips placed the gun in a duffle bag, which he then took with him wherever he went. Phillips testified he did not tell O'Hara-Salmon about the gun; Solano testified Phillips' possession of the gun "wasn't a secret."

[19] As mentioned, on the evening of December 26, Lovell and Phillips drove O'Hara-Salmon to Jack's and then returned to Lovell's place.

[20] O'Hara-Salmon met Sabourin at Jack's. KP was at the bar. KP demanded Sabourin produce his drugs or money. According to Sabourin, KP made a motion to his hip, indicating he was armed with a firearm. Sabourin answered he would return with the cocaine by night's end.

[21] As noted above, a 12:53 a.m. text was sent to Phillips from O'Hara-Salmon's phone: "Get the thing kp is here." Records show that between 1:00 a.m. and 1:47 a.m., Phillips sent a text to O'Hara-Salmon, the contents of which are unknown. He also dialed O'Hara-Salmon's phone three times, although it is not known whether a connection was made. Three text messages asking Phillips to call were sent from Sabourin's phone between 1:45 a.m. and 1:53 a.m.; Phillips dialed Sabourin's number three times during that period.

[22] They connected and talked. Sabourin told him to bring the cocaine package to Jack's right away or there would be a problem with KP. Sabourin said KP was angry and was "carrying".

[23] Phillips took the package of cocaine from its hiding place in Lovell's apartment, placed it inside his boxers, loaded the shotgun with two shells, and asked Lovell to drive him to Jack's.

[24] When Lovell drove up in front of Jack's, O'Hara-Salmon got into the back seat. Phillips testified O'Hara-Salmon was drunk, said KP was giving them problems, and also started talking about "some other guy". Lovell, in her initial statement to police, had also thought O'Hara-Salmon had said: "he had seen somebody" inside the bar "he had had a problem with", "they needed to get them", and "I seen K." Phillips asked Lovell to park the car in the lot behind Jack's.

[25] Phillips and O'Hara-Salmon got out of the car. Phillips had the cocaine and the sawed-off shotgun. Phillips and O'Hara-Salmon walked down an alley towards the front of Jack's.

[26] By this time it was 1:58 a.m. Jack's was closing. People were leaving the bar.

C. In front of Jack's

[27] About 15 minutes before closing, Hadbai and his friends, including Amir, left Jack's and remained in front of the bar.

[28] At 1:46 a.m., Hadbai's girlfriend, Nahrain Gorges, sent him a text. Hadbai responded two minutes later: "Im prob ganna get shot can u wait plz."

[29] Sabourin left Jack's just before closing. He saw Phillips at the mouth of the alley. Phillips expressed concern he and others were in danger from KP. Sabourin said everything was "smooth", took the cocaine from Phillips, and gave it to one of KP's runners. Phillips said Sabourin lied when he testified that he had told Phillips everything was fine with KP.

[30] Amir saw Phillips and O'Hara-Salmon at the mouth of the alley shortly after 2:00 a.m. According to Amir, O'Hara-Salmon pointed to Amir and said "not him", and then pointed to Hadbai and said "him".

[31] Amir testified he talked to Phillips "just basically trying to mediate" the girlfriend dispute between O'Hara-Salmon and Hadbai.

[32] According to Phillips, Hadbai was talking "shit" to O'Hara-Salmon and challenged him to cross the street. O'Hara-Salmon responded, "get out of my face". Amir gave a different version of events, stating O'Hara-Salmon wanted to fight Hadbai in the alley, while Hadbai wanted the fight to take place in the parking lot across the street from Jack's.

[33] Phillips and O'Hara-Salmon crossed over to the parking lot at 2:05 a.m., followed by Hadbai and Amir. A crowd of about 15 to 20 people gathered.

D. The events in the parking lot

[34] There is no dispute Hadbai and O'Hara-Salmon squared-off opposite each other in preparation for a fight. There is also no dispute Phillips moved up beside O'Hara-Salmon and fired the sawed-off shotgun at Hadbai from a few metres away, hitting him. Hadbai stumbled away, before falling to the ground. He died at the scene.

[35] Since the witnesses at trial differed in their testimony about precisely what happened between the time Hadbai and O'Hara-Salmon prepared to fight and Phillips shot Hadbai, I will leave a more detailed treatment of the evidence until a consideration of Phillips' grounds of appeal concerning the issues of self-defence and provocation.

E. The arrest of the appellants

[36] Phillips fled the scene, but was arrested shortly after the shooting in the parking lot of a nearby office building. O'Hara-Salmon was arrested at a later date.

PART 2 – THE APPEAL BY PHILLIPS

II. THE ISSUES ON PHILLIPS' APPEAL

[37] Phillips raises several grounds of appeal, arguing the trial judge erred:

(i) in his instructions on self-defence;

(ii) by excluding expert psychiatric evidence on the issues of self-defence, provocation, and whether the killing was planned and deliberate;

(iii) by failing to leave provocation with the jury as a partial defence;

(iv) by failing to give a rolled-up charge;

(v) by providing an improper summary of the Crown's position in his charge; and

(vi) by improperly instructing the jury about the use they could make of Hadbai's "Im prob ganna get shot" text.

III. THE CHARGE ON SELF-DEFENCE

A. The issues stated

[38] Phillips submits the trial judge committed two reversible errors in his charge on self-defence, which should result in a new trial.

[39] First, he argues the trial judge incorrectly charged the jury using the new self-defence provisions in s. 34 of the Criminal Code. The killing of Hadbai occurred on December 27, 2011. Amendments to the self-defence provisions of the Criminal Code made by the [Citizen's Arrest and Self-defence Act, S.C. 2012, c. 9](https://laws-lois.justice.gc.ca/eng/AnnualStatutes/2012_9/), came into force on March 10, 2013. The jury was charged in January 2015. As a result of discussions at a pre-charge conference, with the concurrence of the parties, the trial judge charged the jury on self-defence using the new s. 34.

[40] However, several months after the trial, this court held in [R. v. Bengy, 2015 ONCA 397](https://www.canlii.org/en/on/onca/doc/2015/2015onca397/2015onca397.html), 21 C.R. (7th) 104, at paras. 38 and 70-71, that the new s. 34 applied only to charges laid after its coming into force. Phillips submits that in light of Bengy, the trial judge committed reversible error in charging the jury under the new s. 34. By doing so, he argues, the jury was instructed in a way that was less generous to the appellant.

[41] As his second ground of appeal, Phillips submits the trial judge erred by using language in his charge that reversed the burden of proof in respect of self-defence.

[42] On its part, the Crown submits that where the parties agree to use the new s. 34, they should be entitled to do so. If the trial judge erred by not following the approach set down in Bengy, his error is not reversible. In any event, whether the old or new self-defence provisions were used, the result would have been the same because the provisions advance the same principles. The trial judge's charge captured the requirement the Crown prove, beyond a reasonable doubt, that Phillips' alleged intention of defending himself and O'Hara-Salmon was invalid and, instead, his actual intention was to cause Hadbai's death. In any event, the proviso would be engaged, and the result would be the same because Phillips and other witnesses agreed the shooting was not necessary in the circumstances.

[43] I shall consider each submission in turn. Before doing so, a more detailed review of the evidence surrounding the events of the shooting is in order.

B. The evidence

[44] Phillips testified at the trial. He acknowledged he had agreed to hold the cocaine Sabourin was fronting for KP. Although he knew what KP looked like, he did not have a direct relationship with him. He had heard KP was a "really high profile drug dealer", carried guns and was a "serious person" in London.

[45] According to Phillips, when late on the evening of December 26, 2011 he received several texts, including the one from O'Hara-Salmon telling him "get the thing," he understood the "thing" to be the cocaine. He had a phone conversation with Sabourin, who said KP was in Jack's Bar "gesturing that he had a gun." He was panicking and afraid.

[46] After receiving the "get the thing" text and talking with Sabourin, Phillips testified he grabbed the sawed-off shotgun, loaded and cocked it, put it down his left pant leg, and then had his girlfriend, Lovell, drive him to Jack's. Lovell had a different recollection, testifying that when they reached Jack's, Phillips took the gun from the duffle bag and put it down his pant leg; Phillips denied he did so.

[47] When asked what he was planning to do with the gun, Phillips testified: "I wasn't planning anything, it was just my protection because [Sabourin] had just told me that KP was gesturin' that he had a gun, so I felt that I needed to protect myself ... [I]f KP were start shooting at me or my friends, then I guess I'm gonna hafta shoot back."

[48] As Lovell's car approached Jack's, Phillips looked for KP, but did not see him. Phillips stated he planned to return to Lovell's house after he gave the drugs to Sabourin.

[49] Near Jack's, O'Hara-Salmon got into the car. On cross-examination, Phillips acknowledged O'Hara-Salmon was laughing - he was not anxious, terrified or frightened. KP's presence at the bar did not seem to cause O'Hara-Salmon any anxiety.

[50] Lovell parked behind Jack's. Phillips testified O'Hara-Salmon was the first one out of the car. Phillips followed him up the alleyway beside Jack's, with the gun in his pant leg. A video of the alley shows Phillips stopping and adjusting something in his pant leg, with O'Hara-Salmon turning around and looking at him.

[51] Phillips testified at that point he felt panicky and scared of KP. Phillips said his feeling of panic and fear persisted when he arrived at the front of Jack's and handed the drugs over to Sabourin. He "didn't know what was going on." Sabourin asked Phillips for the drugs, which he handed over. According to Phillips, Sabourin just walked off with the drugs, having said nothing about KP. Although Phillips thought Sabourin would return the drugs to KP, he testified he did not think everything would be fine because a drug dealer would want money, not returned, unsold drugs.

[52] Nevertheless, he was not going to leave his friends "cause I don't know what's going on right now." This exchange occurred during Phillips' cross-examination:

Q. So again, by way of choices that are available to you, options that you had, you chose to stay with your friends, because you did not know what might happen, and because there might be some danger, there might be a gun, and for which you were prepared, you were ready, in case because you had your own gun, yourself?

A. Correct.

[53] At that point, Amir and Hadbai walked up to Phillips and O'Hara-Salmon. Phillips did not know Hadbai. Phillips was cordial to Amir, shaking his hands and embracing him. Hadbai, however, "started talkin' shit to Drai" saying "let's go across the street." O'Hara-Salmon told Hadbai to get out of his face.

[54] Phillips asked Amir what was going on. Amir responded, "there's gonna be a fight…Come across the street." Phillips testified that as he was crossing the street, he asked Sabourin "is everything good?" Sabourin replied: "No, there's gonna be a fight." Phillips assumed Hadbai was a friend of KP, although before that evening he had no reason to so believe: "I just thought about it, right there, because he was yelling at Drai to come across the street." Phillips assumed there would be a fight between KP's friends and his friends. He testified "we were gonna be fighting Said and KP and their friends."

[55] Phillips and O'Hara-Salmon crossed the street to the parking lot, followed by Hadbai, Amir and others. When asked why he did not return to Lovell's after handing over the drugs to Sabourin, Phillips stated: "Because I was there with my friends. I was there to get my friends."

[56] At the time, Phillips did not hear anyone talking about a gun and he did not tell anyone he had a gun. He understood it would be a one-on-one fight; a fistfight.

[57] Phillips saw KP, Hadbai, Amir and a few others in the parking lot. People divided into two groups.

[58] According to Phillips, opposite them stood Hadbai, with Amir and KP flanking him. Both groups just stood and looked at each other. Phillips heard Amir say, "This is gonna be a one-on-one fight."

[59] Then, Phillips saw KP leave the group, run to a nearby car, and open the trunk. Although he thought KP was going to get a weapon, Phillips did not actually see KP get a gun or weapon. On Phillips' cross-examination, the following exchange took place:

Q: [A]nd you put two and two together, you think, "K-P who I know by reputation is as likely going to a car to get a gun to come back to shoot us"?

A: Correct.

Q: And, at that point, any ordinary intelligent person would've said to Drai, "Don't be takin' off your jacket, we gotta go", point out to K-P, "There's K-P, he's goin' to a car, the trunk is opening, let's get outta here"?

A: That's correct.

Q: Well, that, that's what an ordinary person would do, did you do that?

A: No, I did not.

Q: Why did you keep from [your friends] the fact that you saw K-P running through the Williams parking lot, the trunk being open, why didn't you get them, "Hey, let's get outta here. There might be a gun-drop."

A: I was just observin' the parking lot.

[60] Next, Phillips saw O'Hara-Salmon and Hadbai take a few steps towards each other and take off their jackets. He then saw Hadbai pull something out of his right jean pocket – black and shiny – and point it in the direction of O'Hara-Salmon, his right arm extended forward in front. At trial, Phillips testified he thought it was a gun on the basis that since Hadbai was a friend of KP, if he was pulling anything out, it was going to be a gun. In an earlier statement to the police, Phillips said it was a knife.

[61] Phillips testified he was about 11 or 12 metres from Hadbai.

[62] He said he then pulled out the sawed-off shotgun, ran beside O'Hara-Salmon, and pointed the gun in Hadbai's direction, holding it with both hands. The gun was in plain sight and Hadbai should have seen it. Phillips did not say anything to Hadbai. He thought his life was in danger. He intended to stop Hadbai from what he was doing; he hoped Hadbai would stop coming at them because Phillips was pointing the gun.

[63] Some witnesses testified they saw Phillips crouch down beside O'Hara-Salmon and point the gun; Phillips denied doing so.

[64] According to Phillips, when Hadbai was still pointing the object Phillips thought was a gun, Phillips saw KP run back into the parking lot towards O'Hara-Salmon and himself.

[65] Phillips remained beside O'Hara-Salmon for a few seconds, pointing his gun when he observed Hadbai start to run at them. When Hadbai was about a metre away, Phillips said he panicked and shot the gun: "I felt my life, and my friend's life was in danger, thought he was gonna shoot, because I thought it was a gun at the time." On cross-examination, Phillips agreed he deliberately, not accidentally, shot the gun at Hadbai to prevent O'Hara-Salmon and himself from being shot, and he did so because he felt his life was in danger.

[66] When asked in examination-in-chief why he did not do something other than shoot Hadbai, Phillips responded: "I felt he had a gun. I felt like my life was in danger, if I would've turned around and ran, he would've started shooting." The Crown's testing of that evidence on cross-examination resulted in the following exchange:

Q: And in order to overcome that danger, the options available to you, otherwise, were: shoot the gun into the air, say, "I've got a gun here. Look out. Don't come any closer"; shoot him in the knee; shoot it into the ground in front of him. All of those options available to you, you thought were insufficient?

A: Yes.

Q: You had to shoot him in the chest to stop this threat?

A: Yes.

[67] After shooting the gun, Phillips saw Hadbai stumble and fall, with a black, shiny knife lying beside his hand. Phillips then ran away.

[68] The Crown's lengthy cross-examination of Phillips concluded with the following exchanges:

Q: I'm gonna put to you sir, that in all the steps along the way, you had ample opportunity to avoid putting yourself in that situation, that you chose to put yourself in that situation, that it was not necessary for you to be in that situation, it was not necessary for [you] to shoot and kill Said Hadbai.

A: It was not necessary for me to shoot him...

Q: Right.

A: But it was necessary for me to be there for my friends.

Q: Okay. So, help me with that, and I'm not gonna belabour the point. From the moment you got in the car with the sawed off shotgun stuffed down your pants, or, in a duffle bag loaded, you took that gun with you, fully and with knowledge that the opportunity was there, you might have to use it?

A: Yes.

Q: And you chose to use it, because you chose it to leave the drugs with Drai, for Drai to give the drugs over, to go to Kenzie and give him the drugs and leave, to leave with Drai, to leave with Rigoberto, you chose to walk across the street, you chose to stay when the fight was ongoing, you chose to stay and involve yourself in a matter that you could've just walked away from at any time?

A: You're correct.

Q: Now, I'm going to put to you, sir, that the reason you stayed and took the gun out at the time you did, was because you and Drai O'Hara-Salmon had planned, "Him", "Not him", him Said Hadbai, was going to be shot that night by you?

A: That is not true.

[69] As to the evidence given by the other witnesses present in the parking lot at the time of the fight:

(i) no other witness testified to seeing KP leave the fight circle, go to a car, and return to the fight. One witness, Liban Ali, stated that when Hadbai charged toward O'Hara-Salmon, he saw KP "lurking" behind them;

(ii) no other witness testified to seeing Hadbai holding a gun; and

(iii) some witnesses said they did not see Hadbai holding a knife; others said they did; one, Solano, said he saw a knife in Hadbai's pant pocket; another, Khaled Khalil, testified he saw a knife on the ground after the shooting and Amir acknowledged to him he had given the knife to Hadbai "just in case."

C. Analysis

(1) First ground of appeal: The trial judge erred by charging the jury using the new self-defence provisions

(a) The effect of the amendments to s. 34 of the Criminal Code

[70] The new s. 34 of the Criminal Code does not simply declare the law as contained in the former self-defence provisions; it has made some substantive changes to the law of self-defence: [R. v. Green, 2015 QCCA 2109](https://www.canlii.org/en/qc/qcca/doc/2015/2015qcca2109/2015qcca2109.html), 337 C.C.C. (3d) 73, at para. 50, leave to appeal to S.C.C. refused, 2016 CarswellQue 8530. While in some circumstances the application of both the former and new provisions will result in the same verdict, that will not always be the case: [R. v. Evans, 2015 BCCA 46](https://www.canlii.org/en/bc/bcca/doc/2015/2015bcca46/2015bcca46.html), 321 C.C.C. (3d) 130, at para. 30.

[71] The changes wrought by the amendments were described by this court in Bengy, at paras. 46 to 48:

The new unified three-element framework in the Citizen's Arrest and Self-defence Act may not have changed the scope of what is relevant to the defence. However, it changed the nature of what is relevant. Mandatory requirements were converted into discretionary factors (e.g. proportionality, provocation, the quantum of force used and the quantum of force apprehended)…

In some cases, the new self-defence provisions are more generous and in other cases they are more restrictive. The more generous elements of the new provisions include:

• The conversion of mandatory prerequisites into discretionary considerations, which means more claims will be put before juries;

• The allowance of defence of other persons not necessarily "under [the accused's] protection", as required under the former s. 37;

• The elimination of a strict limitation on when fatal defensive force can be used, which previously required an apprehension of death or grievous bodily harm; and

• The expansion of acts of self-defence from "use of force" to any "act" (e.g. stealing a car or breaking into a house).

There are also less generous elements of the new provisions. Most significantly, they require that certain "pro-conviction" factors be considered in every claim of self-defence, such as whether other means of response were available to the accused, the nature and proportionality of the accused's response, and the accused's role in the incident (i.e. provocation). Such considerations were not always relevant under the old regime. For instance, the former s. 34(2) had no proportionality requirement and arguably justified excessive force if the accused was under a reasonable apprehension of death. The former provisions also did not require consideration of alternative means of response, which made it possible for self-defence to be based on "stand your ground" righteousness. [Emphasis added.]

[72] Given Bengy's holding that the new s. 34 applies only to charges laid after it came into force, Phillips submits the trial judge's error in charging using the new s. 34 in and of itself requires a new trial.

[73] I would not accept that submission.

[74] In a transitional case such as the present one, where counsel agreed the trial judge should charge using the new s. 34 notwithstanding the offence pre-dated March 10, 2013, a more case-specific inquiry is required. On the one hand, the old and the new provisions advance the same principles and overlap in many respects; on the other, as noted in Bengy, the new provisions are both more and less generous in terms of the accused. As a result, a case-specific approach requires assessing whether the charge using the new s. 34 deprived the accused of the benefit of some element of the defence that existed under the former self-defence provisions, or brought into play what Hourigan J.A. described in Bengy as "pro-conviction" factors that did not form part of the elements of the former self-defence provisions. Simply stated, the appellate inquiry should be: this is what the accused received by way of a charge; this is what the accused should have received; as a result, was the accused prejudiced?

[75] Such a case-specific, functional inquiry starts by identifying the essence of the self-defence claim raised at trial by the appellant: [R. v. Pintar (1996)](https://www.canlii.org/en/on/onca/doc/1996/1996canlii712/1996canlii712.html), 110 C.C.C. (3d) 402 (Ont. C.A.), at p. 414. Then, the charge should be reviewed to ascertain whether the key elements of the defence available to the accused under the former self-defence provisions were brought home to the jury for their consideration, in light of the essence of the self-defence claim advanced at trial.

(b) The essence of Phillips' self-defence claim

[76] In the present case, the essence of Phillips' self-defence position was put forward by his trial counsel in closing as follows:

[Jemaine Phillips] admitted that he shot Said Hadbai and explained why he did it, that he thought Said had a gun, and after he pulled out his shotgun, Said started running at him and at Drai, with the weapon in his hand. Jemaine believed that his life and Drai's life were in danger. He thought he or Drai, or both of them were going to get shot. He thought it was the only way to protect his life and the life of his friend.

(c) The elements of a defence available to Phillips under the old s. 34

[77] Phillips submits the jury should have been charged using the former s. 34(2). To ascertain whether the key elements of the defence available to Phillips under the old s. 34(2) were brought home to the jury, a useful starting point is a comparison of the elements of the new s. 34 and the old s. 34(2), set out in the table below.

Former s. 34(2)	Present s. 34
34.(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if	34 .(1) A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(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) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.	(c) the act committed is reasonable in the circumstances. (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person's role in the incident; (d) whether any party to the incident used or threatened to use a weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person's response to the use or threat of force; and (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[78] The old s. 34(2) defence contained three elements:

• The existence of an unlawful assault;

• A reasonable apprehension of a risk of death or grievous bodily harm; and

• A reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary: R. v. Pétel, [1994] 1 S.C.R. 3, at p. 12; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 93 - 94.

[79] Each element possessed subjective and objective components. The subjective component focused on the accused's beliefs and perceptions. The objective component focused on their reasonableness, based on the situation the accused perceived: Cinous, at para. 94. For each element, the old s. 34(2) first required the court to inquire into the subjective perceptions of the accused and then to ask whether those perceptions were objectively reasonable in the circumstances: Cinous, at para. 94.

[80] By contrast, the new s. 34 contains the following three constitutive elements: (i) reasonable belief; (ii) purpose; and (iii) reasonableness. Watt J.A.'s standard jury instructions convert those elements into three questions:

• Did the accused believe, on reasonable grounds, that force was being used or threated against him or another person?

• Did the accused do something for the purpose of defending or protecting him self or another person from that use or threat of force?

• Was the accused's conduct reasonable in the circumstances?

David Watt, Watt's Manual of Criminal Jury Instructions, 2d ed. (Toronto: Thomson Reuters Canada Limited, 2015), at pp. 1249-50.

[81] Phillips submits that notwithstanding some overlap between the old s. 34(2) and the new s. 34, he did not receive the benefit of the following three aspects of the old s. 34(2) by reason of the trial judge using the new provision to charge the jury:

(i) Under the old s. 34(2), the defence applied even if the accused intended to kill or cause grievous bodily harm;

(ii) the defence applied even if the accused provoked the assault; and

(iii) the inquiry under the old s. 34(2) was not whether the responsive force used was no more than necessary to enable the accused to defend himself, but whether the accused believed, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm: Pintar, at p. 421.

I shall consider each in turn.

(d) The availability of s. 34(2) where the accused intended to kill

[82] The trial judge's instructions using the new s. 34 framed the second element of the defence as follows: Had the Crown "proved beyond a reasonable doubt that when Mr. Phillips reached for and used the shotgun, it was not for the purpose of defending or protecting himself or Mr. O'Hara-Salmon from the use of force or the threat of force from Mr. Hadbai?" The trial judge also instructed the jury that the "Crown must establish beyond a reasonable doubt that Mr. Phillips' use of the shotgun against Mr. Hadbai was not for the sole purpose of defending or protecting himself or Mr. O'Hara-Salmon from the use or threat of force by Mr. Hadbai."

[83] As part of his discussion of Phillips' purpose, the trial judge summarized the parties' respective positions: Phillips asserted he believed he needed to harm Hadbai in order to save or protect himself or O'Hara-Salmon, whereas the Crown contended Phillips used the shotgun not to defend himself against the use of force, but to assault or kill Hadbai. The trial judge continued:

If Mr. Phillips' purpose in reaching for and using the shotgun was solely to protect himself and/or Mr. O'Hara-Salmon against force being used against him, the requirement of the defensive purpose would be met. However, if he was using the shotgun to assault or kill Mr. Hadbai, the requirement that the force be used solely for the purpose of defending or protecting himself or others would not be met.

[84] Phillips submits this portion of the charge contained a fundamental legal error. It ignored the repeated decisions of this court that in cases which result in death or grievous bodily harm, s. 34(2) applies even if the accused intended to kill or cause grievous bodily harm: Pintar, at p. 421; [R. v. Baxter (1975)](https://www.canlii.org/en/on/onca/doc/1975/1975canlii1510/1975canlii1510.html), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 110; [R. v. Bogue (1976)](https://www.canlii.org/en/on/onca/doc/1976/1976canlii871/1976canlii871.html), 30 C.C.C. (2d) 403 (Ont. C.A.), at p. 407. The charge, Phillips argues, essentially instructed the jury that self-defence was not available to Phillips if they concluded he used the shotgun to assault or kill Mr. Hadbai.

[85] I am not persuaded the impugned passage, when read in the context of the entire charge on self-defence, amounts to the misdirection Phillips contends. First, the trial judge made no suggestion in his charge that self-defence was not available to Phillips notwithstanding his admission he had deliberately shot and killed Hadbai. On the contrary, the trial judge spent considerable time instructing the jury on the availability of that defence notwithstanding Phillips' admission.

[86] Second, this part of the charge called on the jury to consider the purpose of Phillips' act in shooting Hadbai. It is clear the trial judge was contrasting two situations: one where the accused acted to protect himself or another; and the other where he did not – what the trial judge described as "using the shotgun to assault or kill Mr. Hadbai." In the immediately following paragraph, the trial judge distinguished acts for defensive and offensive purposes. In the former case, self-defence would be available; in the latter, it would not. As a result, when read in its entirety, the charge did not tell the jury that if they concluded Phillips in fact deliberately killed Hadbai, self-defence would not be available.

(e) References to the new s. 34 "factors"

[87] Phillips submits that by referring in the charge to the new s. 34 "factors", the trial judge charged the jury in a less generous way than available under the old s. 34(2).

[88] Employing the new s. 34, the trial judge framed the third element as whether the act committed was "reasonable in the circumstances." He directed the jury to "take into account the relevant circumstances and actions of Mr. Phillips and of Mr. Hadbai, as well as the circumstances of the entire incident and evidence leading up to the event." He then instructed the jury that they "must consider" the factors enumerated in the new s. 34, including whether there were "other means available to respond to the potential use of force" and the "nature and proportionality of Mr. Phillips' response to the use of threat or force." He told the jury it could also take into account "other circumstances that you think are relevant to the reasonableness of what Mr. Phillips did in response to the force that was being used against him by Mr. Hadbai."

[89] As part of his review of the evidence relevant to this element of the defence, the trial judge mentioned Phillips' evidence that Hadbai had advanced rapidly with what he believed was a gun in his hands, which Hadbai was going to use against them. The trial judge continued:

Although reasonableness is an objective standard, which is to be assessed in accordance with the findings that you make in relation to what relevant facts were at the material time, you must also consider whether Mr. Phillips was honestly mistaken about the circumstances in which he found himself. If he was mistaken about those circumstances, you must make your assessment of the reasonableness of his conduct in accordance with the circumstances as he honestly believed them to be, so long as his mistake was a reasonable mistake. If his mistake was not reasonable, it is irrelevant for the purposes of your assessment of the reasonableness of his conduct.

The question, ladies and gentlemen, that I have been discussing is whether the Crown has proved beyond a reasonable doubt that Mr. Phillips' use of the shotgun against Mr. Hadbai was not reasonable in the circumstances. In addressing this question, you must take into account all of the factors that I have reviewed for you, as well as any other factor that in your view impact upon the reasonableness of the use of the shotgun in the circumstances. You may consider other factors as well. You must, however, consider the factors as a whole, and in light of the evidence as a whole. It is for you to say, in the end, whether Mr. Phillips' use of the shotgun was a reasonable act for the purpose of defending himself or O'Hara-Salmon against the force being used by Mr. Hadbai. [Emphasis added.]

[90] Phillips submits the trial judge's references to the new s. 34 "factors" resulted in a less generous charge because the trial judge told the jury they "must consider" the factors of (i) the "role" of the appellant in the incident, (ii) whether there were other means available to respond to the potential use of force, and (iii) the "nature and proportionality" of his response to the use of threat or force. These instructions, he submits, removed from the jury's consideration the more generous scope of justification offered by the old s. 34(2).

Phillips' "role"

[91] Dealing first with the factor referring to the appellant's role, Phillips submits the charge removed the availability of self-defence in cases of provocation, thereby removing the benefit available under the old s. 34(2) to an initial aggressor who provoked the assault against himself: [R. v. McIntosh](https://www.canlii.org/en/scc/doc/1995/1995canlii124/1995canlii124.html), [1995] 1 S.C.R. 686, at para. 42. I do not agree. Provocation, in the sense of acting as the initial aggressor, did not arise on the facts of this case.

"Other means available" and "proportionality"

[92] Turning next to the trial judge's reference to the factor of "other means available to respond to the potential use of force" and the "nature and proportionality" of his response to the use of threat or force, Phillips points out that the third element of the s. 34(2) defence concerned whether the accused believed, "on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm." In Bogue this court stated, at p. 407, that under s. 34(2) "there is no specific requirement that the repelling force used by the accused shall be proportionate to the unlawful assault, if the other conditions of the subsection are satisfied." Instead, "[t]he essential question to be determined under s. 34(2)(b) in considering whether the force is excessive, is the state of mind of the accused at the time the force is applied." See also: Baxter, at p. 109. In Pintar, this court held, at p. 421, that under the former s. 34(2) the question was "not whether the responsive force used was no more than necessary to enable the accused to defend himself, but whether the accused believed, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm." Phillips argues that by referring to the "other means" and "proportionality" factors, the trial judge deprived him of the more generous provisions of s. 34(2).

[93] I am not persuaded by this submission. When assessing this portion of the charge, one must recall the more recent, detailed discussion of the "belief on reasonable grounds" analysis called for by s. 34(2) undertaken by the majority of the Supreme Court of Canada in [Cinous, at paras. 121, 123-124](https://www.canlii.org/en/scc/doc/2002/2002scc29/2002scc29.html):

[T]he requirement is that the belief that he had no other option but to kill must have been objectively reasonable.

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. In this case, there is absolutely no evidence from which a jury could reasonably infer the reasonableness of a belief in the absence of alternatives. There is nothing in the evidence to explain why the accused did not wait in the service station rather than go back to the van. There is absolutely nothing to explain why he did not flee once he had left the van. Indeed, there is nothing to suggest the reasonableness of his conclusion that he needed to walk back to the van and shoot the victim.

Self-defence under s. 34(2) provides a justification for killing. A person who intentionally takes another human life is entitled to an acquittal if he can make out the elements of the defence. This defence is intended to cover situations of last resort. In order for the defence of self-defence under s. 34(2) to succeed at the end of the day, a jury would have to accept that the accused believed on reasonable grounds that his own safety and survival depended on killing the victim at that moment… Emphasis in original.]

[94] Accordingly, in assessing the "no alternative course of action" aspect of the s. 34(2) defence, a jury is entitled to consider evidence as to whether the accused availed himself of other alternatives to the course of action he undertook: Cinous, at para. 123.

[95] And this very issue of the availability of alternative courses of action was put in play at the trial during both Phillips' examination-in-chief and cross-examination (referred to in paras. 66 and 68 above), as well as in his counsel's closing address when he stated:

Jemaine told you clearly he shot in defence of himself and Drai. And [Crown counsel] suggests that Jemaine could've run off or shouted instead of firing. The way he ran off after the sound of the second shot. I remind you that all of the events immediately surrounding Said's death happened very, very fast. For [Crown counsel] to divide this timeline in frozen seconds is not realistic. This is not the way time, sensations, reactions and life occurs for any of us, let alone in the mind of a scared teenager.

[96] Consequently, I do not see the trial judge's reference to the new s. 34 factor of whether there were other means available to respond to the potential use of force as somehow depriving Phillips, on the record of this case, of some benefit otherwise available to him under the old s. 34(2).

[97] Regarding the trial judge's reference to the new s. 34"s "proportionality" factor, on the specific facts of this case it is difficult to see how a reference to the proportionality factor, instead of to "belief on reasonable grounds" under the old s. 34(2)(b), could have affected the jury's self-defence analysis.

[98] The concept of reasonableness under the old s. 34(2) "connotes a community standard against which the actions of individuals within the community can be measured": [R. v. Pilon, 2009 ONCA 248](https://www.canlii.org/en/on/onca/doc/2009/2009onca248/2009onca248.html), 64 C.R. (6th) 356, at para. 73. Here, Phillips admitted he possessed a most lethal illegal weapon - a sawed-off shotgun - took it to the area of Jack's Bar, and was prepared to use it to help his friends. By its verdict against Phillips of planned and deliberate murder, the jury evidently rejected Phillips' singular evidence that at the fight it appeared Hadbai possessed a gun, when in fact he did not. The situation in the parking lot therefore was characterized by extremes: one person did not have a gun (except in Phillips' singular view), while the other had a sawed-off shotgun. Those contrasting extremes left little room for the operation of "belief on reasonable grounds" that Phillips could not "otherwise preserve himself from death or grievous bodily harm" as a realistic factor in any self-defence analysis, unless the jury "climbed into the skin of the respondent and accepted as reasonable a sociopathic view of appropriate dispute resolution" and accepted the moral code of the criminal sub-culture in which the appellant operated: Cinous, at para. 130, per Binnie J., concurring; Pilon, at para. 75; [Grant, 2016 ONCA 639](https://www.canlii.org/en/on/onca/doc/2016/2016onca639/2016onca639.html), 342 C.C.C. (3d) 514, at para. 63. That, the jury was not entitled to do.

[99] On the specific facts of this case, I therefore conclude Phillips was not prejudiced by the trial judge's use of the new s. 34. He did not lose a reasonable prospect for an acquittal on the basis of self-defence.

(2) Second ground of appeal: The trial judge reversed the burden of proof in his charge on self-defence

[100] Where the accused relies on self-defence, the burden of proof lies on the Crown, who must prove beyond a reasonable doubt that the defence does not apply: Cinous, at para. 39. The only burden on the accused is the evidential one of pointing to evidence that puts the defence into issue.

[101] Phillips submits the trial judge erred by using affirmative language in the self-defence portion of his charge and decision tree, thereby effectively reversing the burden of proof on the issue of self-defence. I would not accept this submission.

(a) The language of the charge

[102] Phillips contends two sentences in the charge reversed the onus of proof. In respect of the first element of the defence, at one point in the charge the trial judge stated: "If you are not satisfied beyond a reasonable doubt that Mr. Phillips reasonably believed that force or the threat of force by Mr. Hadbai was being used against him or Mr. O'Hara-Salmon, then the defence of self-defence is not available to Mr. Phillips." The second instance occurred when the trial judge was instructing on the second element; he said: "[I]f you are not satisfied beyond a reasonable doubt that Mr. Phillips' purpose in reaching for and using the shotgun was solely to defend or protect himself or Mr. O'Hara-Salmon against the force or threat of force used by Mr. Hadbai, then the defence of self-defence fails."

[103] I accept the syntax is awkward and the language can be read as incorrectly stating the burden of proof. However, when read in context, it does not amount to reversible error, for two reasons.

[104] First, each sentence was immediately preceded by a proper statement of the onus: in the case of the first purported error - "I remind you that there is no burden on the defence to prove anything; the burden remains with the Crown to disprove at least one element of the requirements for self-defence"; and in the case of the second - "The Crown must establish beyond a reasonable doubt that Mr. Phillips' use of the shotgun against Mr. Hadbai was not for the sole purpose of defending or protecting himself or Mr. O'Hara-Salmon from the use or threat of force by Mr. Hadbai."

[105] Second, the charge on self-defence ran to some 20 transcript pages. In it, the trial judge properly stated the burden of proof 16 times. As well, the charge on self-defence concluded with the following strong, correct reminder of the burden:

Remember, the burden is on the Crown, who must prove beyond a reasonable doubt that at least one of these conditions was absent. Mr. Phillips does not have any burden of proof and does not have to demonstrate that these conditions were present.

(b) The language of the decision tree

[106] Phillips also contends reversible error resulted from the trial judge using affirmative language in the decision tree when he framed the three questions concerning self-defence as follows:

• Did Jemaine Phillips reasonably believe that force or threat of force was being used against him and/or Drai O'Hara-Salmon?

• Was Jemaine Phillips' act done for the purpose of defending himself and/or Drai O'Hara-Salmon from the above force or threat of force?

• Was the act committed reasonable in the circumstances?

[107] I do not accept this submission. As with the charge, the language of the decision tree must be examined in the overall context of the charge. Before reviewing those specific questions with the jury, the trial judge stated eight times the Crown bore the onus of proving beyond a reasonable doubt that one of those conditions was absent, failing which the jury was required to find Phillips not guilty of the offence.

[108] Further, as he went through the decision tree questions, the trial judge provided the jury with a version of each question using negative language. For example, in respect of the first element, he told them the question they had to consider was: "Has the Crown proved beyond a reasonable doubt that Mr. Phillips did not believe on reasonable grounds that force or the threat of force was being used against him or against Mr. O'Hara-Salmon?" The trial judge reminded the jury that although he used affirmative language in the decision tree to avoid confusion, it was important they understood "the burden to satisfy you beyond a reasonable doubt always remains with the Crown to prove the absence of one of the elements of self-defence."

[109] In conclusion, given the trial judge's repeated references to the correct burden of proof, I have no doubt the jury would have understood the proper burden to apply in their deliberations.

IV. THE ADMISSIBILITY OF DR. GOJER'S EXPERT EVIDENCE

A. The background to seeking the admission of Dr. Gojer's evidence

[110] Part of the defence theory at trial was that Hadbai acted in a bizarre, aggressive manner on the night he was shot.

[111] Defence counsel elicited evidence from two of Hadbai's girlfriends, Knowles and Gorges, that Hadbai sometimes heard a voice, which he called "Jad". The trial judge did not permit defence counsel to question the girlfriends about whether Hadbai suffered from schizophrenia.

[112] Conflicting evidence emerged about whether Hadbai had initiated a confrontation with O'Hara-Salmon in Jack's Bar before the fight, as well as the details of Hadbai's actions immediately before he was shot. Some witnesses testified that as Hadbai and O'Hara-Salmon were readying themselves to fight, Phillips ran beside O'Hara-Salmon or towards Hadbai, pulled out his sawed-off shotgun and shot Hadbai. Other witnesses, including Phillips, testified they saw Hadbai run or "heavily walk" towards O'Hara-Salmon, at which time Phillips shot him.

[113] Well into the trial, counsel for Phillips served formal notice of his intention to call expert evidence from a forensic psychiatrist, Dr. Julien Gojer, on whether Hadbai was suffering from a mental disorder at the time of the shooting. Phillips contended evidence of Hadbai's mental state was relevant in three ways: (i) Hadbai's hearing of a voice – "Jad" – prompted him to engage in aggressive conduct that put his personal safety at risk, making it more likely Hadbai (or "Jad") drove the events leading to his death, and undermining any notion of a planned and deliberate homicide; (ii) Hadbai's mental state made it more likely he was the aggressor at the moment of his death, thereby supporting Phillips' defences of self-defence and provocation; and (iii) with respect to self-defence, Dr. Gojer's evidence could assist the jury in explaining what defence counsel termed Hadbai's "aberrant" behaviour, thereby enhancing the credibility of Phillips' evidence that Hadbai's conduct made him fear for his life.

[114] At the time the notice was served, Phillips had not yet indicated whether he would testify, nor had he admitted he was present at the shooting, nor had he previously advised he would be asserting defences of provocation and self-defence. Although retained, Dr. Gojer had not yet prepared a report. In the exercise of his trial management powers, the trial judge asked for preliminary submissions from counsel about the threshold admissibility of Dr. Gojer's evidence assuming, for purposes of the submissions, that Dr. Gojer would testify Hadbai suffered from schizophrenia or some other psychological problem. The trial judge concluded that while Dr. Gojer's evidence would not be relevant to the issue of Hadbai's state of mind "simpliciter", he could not decide on the admissibility of the evidence until Phillips formally disclosed the defences he would be advancing. He deferred his ultimate ruling until a voir dire was held.

[115] After Dr. Gojer's report was delivered, the trial judge conducted a voir dire, at which Dr. Gojer testified. The trial judge ruled his proposed expert evidence was inadmissible.

[116] Phillips submits the trial judge erred in excluding Dr. Gojer's expert evidence.

B. Dr. Gojer's evidence

(1) Dr. Gojer's report

[117] Dr. Gojer prepared a report dated December 12, 2014. In preparing his report, Dr. Gojer did not review any clinical or medical records about Hadbai's physical or mental health. He relied heavily on the notes defence counsel had taken of the trial evidence given by Hadbai's two girlfriends, Knowles and Gorges; he was not provided with transcripts of their evidence. Dr. Gojer highlighted several aspects of their evidence: (i) incidents where Hadbai had lost his temper; (ii) ones in which he had become involved in bar fights; and (iii) Hadbai's description of hearing a voice, "Jad".

[118] Dr. Gojer wrote that "[t]he information from different collateral sources suggest very strongly that Said Hadbai had several problems", including problems of escalating aggression, talking about hearing a voice, and of having another personality, Jad. He continued that "[t]he problems that Mr. Hadbai had could be indicative of the following psychiatric illnesses." He listed two, schizophrenia and dissociative identity disorder, and described their symptoms. Dr. Gojer then concluded his report as follows:

We do not have any prior clinical records on Mr. Hadbai and a formal diagnosis is not possible as he cannot be interviewed or assessed at this time. The various signs and symptoms reported by collateral sources can be relied on to generate a variety of hypotheses as to what may have predisposed Mr. Hadbai to behave in the manner he did at the time of his death. Lastly, notwithstanding all the signs noted by collateral sources, Mr. Hadbai could have acted in the manner he did, independently of any mental illness. His actions may have been prompted by his displeasure with the accused individuals over other relational issues.

(2) Dr. Gojer's voir dire evidence

[119] At the voir dire, Dr. Gojer testified on examination-in-chief that although he did not have the opportunity to examine Hadbai, he could "comment on signs and symptoms that were reported from collateral sources that would raise the index of suspicion about an illness being present." He testified in general terms that hearing voices was a diagnostic factor indicative of a mental illness. Asked to assume that auditory hallucinations were indicative of schizophrenia, Dr. Gojer was asked about the effects certain drugs might have on such a person. Dr. Gojer confirmed there were a variety of hypotheses as to what may have predisposed Hadbai to behave in an aggressive, violent, unpredictable manner at the time of his death, including acting that way independent of any mental illness.

[120] On cross-examination, Dr. Gojer stated that in the absence of longer-term evidence about Hadbai's behaviour and symptoms, he could not diagnose him as schizophrenic. Dr. Gojer stated he would not see the voice described by Hadbai as a "command hallucination", just as a laughing voice. He agreed that nothing he was made aware of showed Hadbai was suffering from voices commanding him to be aggressive. Dr. Gojer stated that if the question was whether Hadbai had some signs of mental illness, "I'd say you don't need to be an expert to conclude that." His cross-examination concluded with the following exchange:

Q: But you arrive at halfway down the page nine of what you have a number of working hypotheses that might, could be the case, might be the case, possibly the case, may be the case, but nothing that you can point to and say as a doctor, as an expert providing an opinion in court, "Here is what it is"?

A: If you're asking me for that level of precision? No. I can only talk to you in more general terms that a mental illness was at play and I can give you the differential diagnosis.

Q: Well, in fact, sir, do you not allow at page 10 that mental illness might not even been at play? There might've been something about what was happening that caused people to react in a certain fashion without the overlay of any form of mental illness?

A: Well, I mean, in my mind, the probability of the mental illness being present is very high, but there could be other reasons other than a mental illness for this behaviour.

Q: Okay. And at the end of the day, sir, you just cannot tell, you can offer no comfort to the jury as an expert about what was at play in relation to how things were unfolding?

A: Well, I mean, I don't have all the evidence and I'm very limited as a psychiatrist, and I think that's a decision for His Honour to make, because I can only tell you what my psychiatric evidence is.

C. The trial judge's ruling

[121] The trial judge gave brief oral reasons excluding Dr. Gojer's proposed evidence on the basis it did not meet the criteria set out in [R. v. Mohan](https://www.canlii.org/en/scc/doc/1994/1994canlii80/1994canlii80.html), [1994] 2 S.C.R. 9; they were followed by detailed written ones.

[122] In his written ruling, the trial judge was guided by a consideration of the four Mohan factors – relevance, necessity, the absence of any exclusionary rule, and a qualified expert. The trial judge expressed concerns about the "factual foundation" of Dr. Gojer's evidence:

[H]ere we have an opinion that is based on assumptions related to conjecture and hypothesis, with a limited, perhaps ill-founded, factual basis. Dr. Gojer did not hear the witnesses, he was not provided with transcripts, or objective medical reports, rather, has been furnished with "counsel's notes" and disclosure materials.

[123] The trial judge concluded, at paras. 50, 53 and 54 of his reasons, that Dr. Gojer's evidence was "marginally relevant," not necessary and did not pass a cost-benefit analysis:

It seems to me that expert evidence is not required to explain or elaborate on the obvious. A jury can draw [its] own conclusions as to whether the deceased's predisposition or character, aggression or observations of his mental health will afford some evidence with respect to the defence of self-defence, provocation or another issue. From the cross-examination of this expert, his opinion of possible psychiatric or psychological illnesses not being diagnostically supported with due consideration to the criteria in the DSM 5 manual is troublesome. Dr. Gojer also agreed that he has no information and the deceased's mental state on the day in question may not be in sync with his longitudinal history.

The proposed expert evidence is of marginal relevance and is not reliable. The jury does not require any psychiatric impressions offered by Dr. Gojer to address the symptoms described by him in his report and already adduced in evidence during this trial. The jury has heard all of this testimony first-hand and do not require an expert to interpret what they may or may not accept from the various witnesses' observations of the deceased on some prior occasions.

In the exercise of my residual discretion, and the cost benefit analysis described in Mohan, at this stage I have concerns that the potential expert opinion is speculative, unreliable and may attract disproportional weight, dressed up in scientific language and submitted through a witness of impressive antecedents. The evidence is apt to be accepted as being virtually infallible and as having more weight than it deserves. The opinion evidence may also confuse the jury, unduly protracting the proceedings, and is unhelpful.

D. The governing legal principles

[124] Expert opinion evidence is presumptively inadmissible consisting, as it does, not of statements by a witness of what he or she saw, heard, felt or did, but of a statement, based on experience and training, about a ready-made factual inference that should be drawn from a body of facts: [R. v. Abbey](https://www.canlii.org/en/scc/doc/1982/1982canlii25/1982canlii25.html), [1982] 2 S.C.R. 24, at p. 42; [R. v. Abbey, 2009 ONCA 624](https://www.canlii.org/en/on/onca/doc/2009/2009onca624/2009onca624.html), 97 O.R. (3d) 330, at para. 71. The factual inference-drawing that lies at the heart of expert opinion evidence has the real potential, as Doherty J.A. put it in Abbey, at para. 71, "to swallow whole the fact-finding function of the court, especially in jury cases." Yet, expert opinion evidence often is necessary in a criminal case, so the judicial challenge is to control properly its admission, presentation to, and use by the jury: Abbey (Ont. C.A.), at para. 73.

[125] The judicial admissibility control process is described as involving two steps: (i) assessing whether the preconditions to admissibility set down in Mohan have been met, and (ii) deciding "whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence": [Abbey (Ont. C.A.), at para. 76](https://www.canlii.org/en/on/onca/doc/2009/2009onca624/2009onca624.html); [White Burgess Langille Inman v. Abbot and Hamilton Co., [2015] 2 S.C.R. 182, 2015 SCC 23](https://www.canlii.org/en/scc/doc/2015/2015scc23/2015scc23.html), at paras. 23 and 24.

[126] The second step engages the trial judge's "gatekeeper" function and requires the exercise of judicial discretion by identifying and weighing competing considerations to decide whether, on balance, those considerations favour the admissibility of the evidence: Abbey (Ont. C.A.), at para. 79.

[127] A trial judge's gatekeeper assessment of the costs and benefits of admitting expert opinion evidence is entitled to deference on appeal, absent an error of law in the admissibility analysis: [R. v. D.D., 2000 SCC 43](https://www.canlii.org/en/scc/doc/2000/2000scc43/2000scc43.html), [2000] 2 S.C.R. 275, at para. 13; Abbey (Ont. C.A.), at para. 97.

E. Analysis

[128] Phillips acknowledges the trial judge identified the correct legal principles to guide his assessment of the admissibility of Dr. Gojer's expert evidence. However, he submits the trial judge erred in applying the Mohan principles to that evidence in several ways: (i) he misapprehended the nature of Dr. Gojer's opinion; (ii) he erred in concluding Dr. Gojer's evidence was "of marginal relevance"; (iii) he erred in holding Dr. Gojer's evidence was not necessary; and (iv) he erred in conducting his cost-benefit analysis. I am not persuaded by these submissions. I will deal with each in turn.

(1) Misapprehension of the nature of Dr. Gojer's opinion

[129] First, Phillips submits, in essence, that the trial judge did not understand the opinion expressed by Dr. Gojer. Phillips submits the trial judge misapprehended Dr. Gojer's evidence in two respects: (i) he failed to understand Dr. Gojer had expressed the opinion Hadbai suffered from schizophrenia at the time of his death; and (ii) he misread Dr. Gojer's report as allowing that Hadbai might have acted the way he did at the time of his death for reasons unrelated to his mental illness.

[130] I see no misapprehension by the trial judge of the nature of Dr. Gojer's opinion in his description that "Dr. Gojer is offering his 'psychiatric impressions', neither a diagnosis nor a review of the deceased mental health or medical records." In his report and during his voir dire evidence, Dr. Gojer could not opine as to the reason Hadbai acted the way he did on the night of the shooting – he held out the possibility of both mental health and non-mental health related reasons. Dr. Gojer wrote that Hadbai's problems "could be indicative" of two psychiatric illnesses, but on cross-examination Dr. Gojer admitted he could not opine Hadbai suffered from schizophrenia. The trial judge properly understood the limits of the views expressed by Dr. Gojer.

(2) The conclusion Dr. Gojer's evidence was "of marginal relevance"

[131] Second, Phillips argues the trial judge erred by concluding Dr. Gojer's evidence was "of marginal relevance" because he failed to appreciate Mohan's relevance criterion concerns only logical relevance, a low threshold to meet.

[132] In Abbey, Doherty J.A. clarified the meaning of relevance in the two-step analysis. He proposed that logical relevance – i.e. the evidence has a tendency to make the existence of a fact in issue more or less likely – is best considered in the first step dealing with preconditions to admissibility. The second aspect of relevance - legal relevance - is best reserved for the gatekeeper second step. There, a trial judge must be persuaded not only of the logical relevance of the evidence, but that it is sufficiently probative to justify admission: Abbey (Ont. C.A.), at paras. 82-84.

[133] I see no legal error by the trial judge on the issue of relevance. He was alive to the different senses of relevance. The trial judge recognized that evidence of any disposition by Hadbai for unprovoked violence was logically relevant to defences such as provocation and self-defence, even though Phillips had never met Hadbai before the night of the shooting. His reasons disclose that his assessment of Dr. Gojer's evidence as having only "marginal relevance" reflected his consideration of the lack of probative value of the evidence, that is, its legal relevance.

(3) The holding Dr. Gojer's evidence was not necessary

[134] Third, Phillips submits the trial judge erred in holding the necessity criterion was not met because "expert evidence is not required to explain or elaborate on the obvious," and the jury could draw its own conclusions from the evidence about Hadbai's conduct.

[135] Again, I see no legal error in the trial judge's conclusion that would justify appellate intervention. Considerable evidence was elicited from witnesses about Hadbai's previous arguments and fights, his statements about hearing a voice, "Jad", and how he acted in the parking lot at the time of his fight with O'Hara-Salmon. Dr. Gojer did not offer a diagnosis of Hadbai's mental state at the time of the shooting. This led the trial judge, during the voir dire, to ask Phillips' counsel why, in light of all the other lay evidence, an expert was required to provide an explanation when "it's a common sense there may be a problem here?" During his cross-examination, Dr. Gojer effectively answered that question when he testified "you don't need to be an expert to conclude [Hadbai had signs of mental illness]". In light of that evidence, it was open to the trial judge to conclude Dr. Gojer's evidence did not meet the necessity criterion: [R. v. Lovie (1995)](https://www.canlii.org/en/on/onca/doc/1995/1995canlii801/1995canlii801.html), 100 C.C.C. (3d) 68 (Ont. C.A.), at p. 79.

(4) The trial judge's cost-benefit analysis

[136] Finally, Phillips argues the trial judge erred in his cost-benefit assessment of Dr. Gojer's evidence. Most of Phillips' specific submissions simply repeat points previously made about the relevance and necessity criteria. But, Phillips also submits the trial judge erred in holding the evidence could "confuse the jury." No confusion could arise, Phillips argues, because Dr. Gojer expressed his views in a clear and concise fashion.

[137] Lack of clarity in the expression of an expert's view is not the only source of potential jury confusion. Lack of certainty about whether the expert is even able to express an opinion can equally confuse the jury, leading to a lack of clarity about what, if any, "ready-made inference" the expert is offering for their consideration. Here, the trial judge properly questioned whether the expert, in fact, was offering any "ready-made inference", given the absence in his report of any language of opinion or diagnosis about why Hadbai acted the way he did on the night of the shooting. As this court stated in Lovie, at p. 79, "[t]he absence of any diagnosis from either [psychiatrist] defies the very purpose and function of expert testimony in the fact-finding process."

[138] I see no legal error in the trial judge's cost-benefit analysis. In the present case, the subject-matter of the opinion evidence was not scientific or technological in nature, but concerned human behaviour. In such situations, the trial judge's judgment call is entitled to deference because "it is much more difficult to decide whether the opinion will provide information which is likely to be outside the experience of the trier of fact, or whether the trier of fact is unlikely to form a correct judgment about the matter in issue": [R. v. K., A. (1999)](https://www.canlii.org/en/on/onca/doc/1999/1999canlii3793/1999canlii3793.html), 45 O.R. (3d) 641 (C.A.), at para. 93, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 16.

[139] In sum, I see no reason for this court to interfere with the trial judge's exclusion of Dr. Gojer's evidence.

V. PROVOCATION

A. The issue stated

[140] At trial, Phillips submitted the partial defence of provocation should be left with the jury. The trial judge refused, ruling there was no air of reality to the defence. Phillips contends that in so doing the trial judge committed two errors. First, the trial judge erred in ruling Phillips' primary defence of self-defence negated the air of reality for a provocation defence. Second, the trial judge erred in concluding there was no direct evidence of each element of the defence; in fact, Phillips submits, there was direct evidence on each.

B. The governing legal principles

(1) Provocation

[141] If the requirements of the statutory defence of provocation are met, it reduces murder, which is an intentional killing, to manslaughter, which is not. The requirements are codified in s. 232 of the Criminal Code which, at the time of the killing, [1] provided:

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) A wrongful act or insult 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.

[142] 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: [Grant, at para. 90](https://www.canlii.org/en/on/onca/doc/2016/2016onca639/2016onca639.html).

[143] But, not all instances of loss of self-control will be excused because the statutory defence of provocation contains both objective and subjective elements. They were described in [R. v. Cairney, 2013 SCC 55](https://www.canlii.org/en/scc/doc/2013/2013scc55/2013scc55.html), [2013] 3 S.C.R. 420, at paras. 33-34, quoting from [R. v. Tran, 2010 SCC 58](https://www.canlii.org/en/scc/doc/2010/2010scc58/2010scc58.html), [2010] 3 S.C.R. 350:

First, there is a two-fold objective element: "… (1) there must be a wrongful act or insult; and (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control": Tran, at para. 25.

Second, there is a two-fold subjective element: "… (1) the accused must have acted in response to the provocation; and (2) on the sudden before there was time for his or her passion to cool": Tran, at para. 36.

[144] Laskin J.A., in Grant, explained the objective element of the defence at para. 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."

(2) The air of reality test

[145] The air of reality test enunciated Cinous was succinctly summarized by this court in Grant, at para. 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 trial judge's ruling

[146] In holding a partial defence of provocation for Phillips had no air of reality in the circumstances of this case, the trial judge stated:

In my view, to determine whether there was an actual loss of self-control to a requirement of suddenness has two dimensions. The wrongful act or insult must be sudden, in that the accused is subjectively unprepared for and is caught by surprise, and two, the accused must kill on the sudden before there is time for his passion to cool…

Here, [I] must consider whether the accused was temporarily deprived of the power of self-control as a result of which he committed the unlawful act causing death.

I am not convinced that there is direct evidence on this issue of provocation, therefore, I must have regard to the nature of the act, the time lapse between the provocation and the accused's conduct during that interval, and all of the other circumstances tending to show Mr. Phillips' state of mind.

Based on the totality of the evidence, including the timing of the events, Mr. Hadbai's actions according to Mr. Phillips, specifically the testimony from Mr. Phillips as to his intentions, his claim of self-defence, and his reaction and response in [conjunction] with the entirety of the circumstances, in my opinion there is a real doubt as to whether the air of reality test is met, and as such the defence of provocation ought not to be left with the jury.

D. Analysis

(1) First ground of appeal: The availability of provocation in light of the primary defence of self-defence

[147] There is no rule against putting to a jury an alternative defence that appears incompatible with the primary defence. The issue is not whether such an alternative defence is compatible or incompatible with a primary defence, but whether the alternative defence meets the air of reality test: [R. v. Gauthier, 2013 SCC 32](https://www.canlii.org/en/scc/doc/2013/2013scc32/2013scc32.html), [2013] 2 S.C.R. 403, at para. 34.

[148] I do not accept Phillips' characterization of the trial judge's ruling as one holding that the primary defence of self-defence negated the air of reality for a provocation defence. As is apparent from the trial judge's ruling, the assertion by Phillips of a primary defence of self-defence was only one of several factors leading the trial judge to conclude the partial defence of provocation did not have an air of reality. The trial judge did not err by taking self-defence into account as a factor. The nature of the primary defence can factor into the air of reality assessment of another defence: [R. v. Doucette, 2015 ONCA 583](https://www.canlii.org/en/on/onca/doc/2015/2015onca583/2015onca583.html), 328 C.C.C. (3d) 211, at paras. 30-31.

(2) Second ground of appeal: Direct evidence of each element

[149] Phillips next submits the trial judge erred in holding there was no direct evidence of any element of the provocation defence. He argues there was some direct evidence of each element:

• a wrongful act or insult: Phillips testified Hadbai ran towards O'Hara-Salmon and himself with what Phillips thought was a gun;

• the act being sufficient to deprive the ordinary person of the power of self-control: although there was no evidence of anger on the part of Phillips, a loss of self-control due to excitement or a combination of many emotions, including fear and anger, can meet the requirements of the defence: R. v. Cudjoe, 2009 ONCA 543, 68 C.R. (6th) 86, at para. 101; R. v. Buziz, 2013 SCC 27, [2013] 2 S.C.R. 248, at para. 13. In the present case, there was evidence of this element of the defence as Phillips testified that at the moment of the shooting he feared for the lives of O'Hara-Salmon and himself and, as a result, fired the shotgun in a panic;

• a sudden wrongful act: Hadbai suddenly introduced the knife, which Phillips perceived as a gun, into the confrontation;

• acting before regaining self-control: the evidence disclosed there were only seconds between the production of the knife and the firing of the shot, leaving no time for Phillips to regain self-control.

[150] On its part, the Crown submits there was no air of reality to the partial defence of provocation for three main reasons:

(i) Only Phillips testified to a belief that Hadbai was holding a gun when he went towards Phillips and O'Hara-Salmon and that belief was based on unreasonable assumptions regarding a connection between Hadbai and KP. Consequently, there was no objective wrongful act or insult sufficient to deprive an ordinary person of the power of self-control;

(ii) Phillips' statement that he panicked must be read in the larger context of his evidence that he deliberately shot the gun to preserve the lives of O'Hara-Salmon and himself. Accordingly, Hadbai's conduct did not subjectively cause Phillips to act in response on the sudden before there was time for his passion to cool; and,

(iii) The totality of the evidence demonstrated Phillips carried the sawed-off shotgun for an ongoing unlawful purpose. He testified he was willing to use it when the occasion arose and, on his own evidence and that of the other witnesses, he deliberately shot Hadbai. Phillips simply chose to step out from O'Hara-Salmon's side of the circle and shoot Hadbai.

[151] I am not persuaded by Phillips' argument. As Doherty J.A. stated in Doucette, at para. 31, defences are not properly left with the jury if supported only by isolated pieces of evidence "ripped from the context of the rest of the evidence". In my view, that is the nature of Phillips' submission. When Phillips' evidence is read in its entirety and in context with the rest of the evidence, it negated the availability of the partial defence of provocation. His evidence disclosed that:

• Phillips expected a certain risk – the presence of guns when a drug deal involved KP or his friends;

• He had prepared for the risk by carrying a sawed-off shotgun for several weeks before the fight across the street from Jack's;

• He anticipated the expected risk might materialize from the time he received the "get the thing kp is here" text. As a result, he brought the gun to Jack's where KP was to be given the drugs. He did so because he feared KP and wanted to protect his friends;

• Upon his arrival at Jack's, he understood from Sabourin that KP had made gestures in the bar suggesting he had a gun;

• Phillips crossed the street understanding the opponents of his friends in the fight would be KP and his friends;

• The risk he anticipated associated with KP and his friends materialized. He testified he saw KP go to a car and open the trunk, as a result of which he assumed KP was getting a gun. When Hadbai brandished an object in his hand, Phillips assumed it was a gun because Hadbai had been standing next to KP and he assumed Hadbai was KP's friend; and,

• Phillips dealt with the expected risk by using the protection he had carried against it – he discharged the sawed-off shotgun.

[152] On the totality of Phillips' own evidence, there was no sudden unlawful act that caused him to lose his self-control. On the contrary: he anticipated and prepared for a risk; it materialized; and he dealt with it, by using that which he carried to protect himself against the risk – the sawed-off shotgun.

[153] Accordingly, Phillips' direct evidence offered no support for a provocation defence. Nor was there any other evidence that gave the defence an air of reality. The trial judge properly refused to leave the defence with the jury.

VI. ROLLED-UP JURY INSTRUCTION

A. The issue stated

[154] In a murder case, evidence that supplies the air of reality to place a defence, justification or excuse before a jury may also be relevant for the jury to consider in deciding whether the Crown has proven the mental or fault element in murder beyond a reasonable doubt: [Cudjoe, at para. 103](https://www.canlii.org/en/on/onca/doc/2009/2009onca543/2009onca543.html). The device by which to draw the jury's attention to such evidence is the rolled-up charge, prosaically described as "a stew of failed individual defences, justifications, or excuses whose ingredients are combined together and left with other relevant evidence for jurors to consider cumulatively in deciding whether [the prosecutor] has proven the mental element essential in murder" (emphasis in original): Watt's Manual of Criminal Jury Instructions, 2nd ed., at p. 1206.

[155] The purpose of a rolled-up charge is to instruct the jury not to take a compartmentalized approach to the evidence by considering it only in connection with a discrete defence, justification, or excuse. Instead, the trial judge should remind the jury "they should consider the cumulative effect of all relevant evidence in determining the adequacy of the prosecution's proof of the mental or fault element in murder" beyond a reasonable doubt: [Cudjoe, at para. 104](https://www.canlii.org/en/on/onca/doc/2009/2009onca543/2009onca543.html); [R. v. Robinson](https://www.canlii.org/en/scc/doc/1996/1996canlii233/1996canlii233.html), [1996] 1 S.C.R. 683, at para. 59; [R. v. Fraser (2001)](https://www.canlii.org/en/on/onca/doc/2001/2001canlii8611/2001canlii8611.html), 159 C.C.C. (3d) 540 (Ont. C.A.), at para. 25, leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 11.

[156] Even where the partial defence of provocation is not left for the jury, evidence of an accused's anger, excitement or instinctive reactions can have an impact on the formation of the requisite intent for murder and must be considered by the jury on that issue: [R. v. Bouchard, 2013 ONCA 791](https://www.canlii.org/en/on/onca/doc/2013/2013onca791/2013onca791.html), 305 C.C.C. (3d) 240, at para. 62, aff'd 2014 SCC 64, [2014] 3 S.C.R. 283; [R. v. Singh, 2016 ONSC 3739](https://www.canlii.org/en/on/onsc/doc/2016/2016onsc3739/2016onsc3739.html), at paras. 84-85.

[157] In the present case, counsel for both accused requested the trial judge to include a rolled-up instruction in his charge. Counsel for O'Hara-Salmon made the request because "there is some evidence for the rolled-up charge here of provocation, and self-defence, and intoxication." Phillips' counsel framed his request as one for a rolled-up charge on intoxication and provocation. Crown counsel argued it would be confusing, and therefore not appropriate, to suggest the intoxication available for O'Hara-Salmon could somehow be available for both accused.

[158] The trial judge ruled that intoxication on behalf of O'Hara-Salmon would be left for the jury, as would self-defence for both accused and, in the result, he gave a form of rolled-up charge on intoxication in respect of O'Hara-Salmon. In his ruling, the trial judge continued with respect to Phillips: "[I]n my view there's no air of reality to provocation. I will not be advancing that to the jury, and there will be no rolled-up charge presented."

[159] On appeal, Phillips submits the trial judge erred in failing to include in his charge a rolled-up instruction regarding evidence about his drinking and smoking marijuana before Lovell drove him to Jack's, self-defence, and provocation. He says the failure to give a rolled-up charge deprived him of a route to manslaughter.

B. Analysis

[160] No word formula is mandatory for a rolled-up instruction. As put by Watt J.A. in [R. v. Flores, 2011 ONCA 155](https://www.canlii.org/en/on/onca/doc/2011/2011onca155/2011onca155.html), 269 C.C.C. (3d) 194, at para. 157: "Substance prevails, not form." Key to any such instruction is a direction to consider the cumulative effect of the evidence on the state of mind issue without regard to any decision about any other issue to which the evidence may also be relevant: Flores, para. 157.

[161] Although the trial judge ruled he would not give a rolled-up charge in respect of Phillips, his charge on the evidence relevant to assessing Phillips' mental state for murder and planned and deliberate murder substantively accomplished the purpose of a rolled-up charge. This is evident from the following portions of the charge. First, in charging the jury on the mental state of Phillips required for the offence of murder, the trial judge stated:

You have some evidence about Mr. Phillips that he had a "buzz on" and he consumed some alcohol and smoked one marijuana joint, and while you may want to keep that in mind along with your consideration of all of the evidence with respect to Mr. Phillips' state of mind for murder, the specific instructions I just provided to you on the issue of intoxication do not apply to Mr. Phillips.

You should consider all of this evidence that might suggest that Mr. Phillips acted instinctively, in the sudden excitement of the moment, without thinking about the consequences of what he did, and without either state of mind necessary to make the unlawful killing of Mr. Hadbai murder.

You have the testimony of Mr. Ali, Solano, Yasin and Sabourin about what led up to the fight, Mr. Hadbai's demeanour that evening, and his subsequent actions. You have the testimony from Mr. Phillips. Clearly, you have differing versions of events from all witnesses, including witnesses called by each party as to what occurred just prior to the shooting that you will need to reconcile. You will need to consider all of the evidence.

To determine [O'Hara-Salmon] and [Phillips'] state of mind, what he meant to do, you should consider all the evidence. You should consider what he did or did not do; how he did or did not do it; and what he said or did not say.

You should look at [their] words and conduct before, at the time and after the unlawful act that caused Said Hadbai's death. All these things, and the circumstances in which they happened, may shed light on [O'Hara-Salmon] and [Phillips'] states of mind at the time… [Emphasis added.]

[162] Second, in the subsequent section of his charge on whether the murder of Hadbai was planned and deliberate, the trial judge instructed the jury to "consider all the evidence", including the appellants' "state of mind, including any evidence of impaired mental state" and "the effect of any real or imagined provoking words or conduct from Said Hadbai or other towards Drai O'Hara-Salmon and/or Jemaine Phillips' state of mind": [R. v. Reynolds (1978)](https://www.canlii.org/en/on/onca/doc/1978/1978canlii1269/1978canlii1269.html), 22 O.R. (2d) 353 (C.A.), at pp. 364-65.

[163] In his discussion of specific pieces of evidence, the trial judge mentioned the evidence about O'Hara-Salmon's consumption of alcohol, but not the evidence concerning Phillips. The trial judge did refer to the evidence of Hadbai's demeanour and actions leading up to the shooting. He concluded by stating:

If you accept the evidence from Mr. Phillips or other witnesses who describe provocative conduct by Mr. Hadbai, his friends or KP, some or all of these considerations and the entirety of the evidence may leave you with a reasonable doubt as to any planning and deliberation.

[164] Taken together, these portions of the charge provided the jury with the functional equivalent of a formal rolled-up charge. I see no error by the trial judge.

VII. IMPROPER SUMMARY OF CROWN'S POSITION IN THE CHARGE

A. The issue stated

[165] Phillips submits that in his summary of the Crown's position in the charge, the trial judge unfairly linked the "get the thing" text with evidence about a connection between KP and Hadbai. The issue unfolded in the following way.

[166] Prior to their closing addresses, counsel provided the trial judge with summaries of their clients' positions for inclusion in the charge. Phillips provided a summary in narrative form. Counsel for O'Hara-Salmon and the Crown filed point-form summaries which, after the Crown's closing, the trial judge requested be replaced by narrative summaries. Counsel complied.

[167] In the portion of his closing address dealing with the evidence of Brittney Knowles, Crown counsel stated to the jury:

The suggestion put to Ms. Knowles by Mr. Hicks in cross-examination was this: Question: And KP, you know what that stands for? And she says, right. And he says, Kurdish Pride in general or sometimes Kurdish Prince? And she says, I don't know Kurdish Prince. I think it's Kurdish Pride though. And it's obvious that other than the fact both Said Hadbai and this KP individual were both of – I'm going to put it in quotation marks because this is how it was described by other people, "Middle-Eastern descent". Phillips himself and other defence witnesses spoke about that. Other than that being some form of a common denominator, there was no evidence of any association by Said Hadbai with this man, KP It wasn't even put to witnesses that somehow Said was engaged in drug dealing, gun toting activity that he was also a party to the activities of the man described as KP And so when the text message is sent, "get the thing, KP is here," we've heard from Mr. Phillips that he made a loose and sweeping assumption that Said was somehow associated with KP because of their being both of Middle-Eastern descent. And there is some comfort taken from the notion that Said, although it's obvious both had been at the same bar that night, is in no way connected to any association with this man by the name of KP.

[168] In his charge, the trial judge included the following language, received from the Crown, in his summary of the Crown's position:

Drai sent a text message to Jemaine telling him to "Get the thing. KP is here". The Crown's theory is that "the thing" means the gun. This is supported by the use of the term "the thing" by Phillips and defence witnesses both when speaking to police and when testifying at trial. It is also supported by the fact that after Phillips gets this text message, he brings the gun with him downtown and meets up with Drai O'Hara-Salmon, who is waiting for them. The expression KP is here is a loose association, a sweeping assumption that because both are of "Middle-Eastern descent", that somehow Said is connected to KP [Emphasis added.]

[169] Following the charge, Phillips submitted the underlined portion of the summary of the Crown's position was unfair and prejudicial in two ways: (i) it put forth a position not taken by Crown counsel in his closing address; and (ii) it suggested the reference to KP in the text message was a reference to Hadbai as both were Middle-Eastern, thereby advancing a position not previously asserted by the Crown and contrary to the basis upon which the trial had proceeded, namely that KP was not Hadbai. Phillips asked the trial judge to declare a mistrial or remove the offending passage from the written instructions provided to the jury. The trial judge refused to do so.

B. Analysis

[170] Phillips submits the trial judge's refusal amounts to reversible error as it enabled Crown counsel to change his position after hearing Phillips' closing to the jury and to assert facts contrary to those agreed upon during the trial, specifically that KP was not Hadbai. O'Hara-Salmon argues additional prejudice arose because the jury was erroneously invited to link the "get the thing" text with the shooting.

[171] I do not accept these submissions. First, a comparison of the Crown's closing and the portion of the charge reproduced above discloses the summary of the Crown's position included in the charge reflected that advanced by the Crown in its closing. There is no basis for the assertion the Crown somehow gained an advantage by expanding or changing its position through the charge's summary.

[172] Second, neither the Crown's closing nor the summary of its position included in the charge purported to change the trial's operating premise that KP was not Hadbai. What both did was to reflect Phillips' evidence that he connected Hadbai with KP. That connection was central to the self-defence and provocation defences Phillips advanced or attempted to advance at trial. Without it, Phillips' concerns about KP's conduct had no relevance to his perception of Hadbai's conduct, including whether Hadbai was holding a gun.

[173] Several times during his evidence, Phillips testified that he assumed Hadbai was a friend of KP. One reason for his assumption emerged during the following exchange towards the end of his cross-examination:

Q: You made a sweeping assumption that because [Hadbai] was of Middle-Eastern descent, you thought he was associated with KP, and because of an assumption that KP might have a gun, and as a result you shot him the chest?

A: Yes, because he was running towards me …

Q: Okay.

A: … with somethin' I thought was a gun.

[174] Finally, in response to O'Hara-Salmon's complaint about the reference to the "get the thing" text, the Crown submits on appeal that "[i]n the context of how the defence developed the issue and the entirety of the submissions, there is no basis for complaint about this portion of the Crown summary. Read as a whole it consistently tracked the Crown theory advanced in more detail in the closing proper." I accept this submission; it accurately reflects the record before the trial judge.

[175] Accordingly, I give no effect to this ground of appeal.

VIII. IMPROPER INSTRUCTIONS IN THE CHARGE ABOUT THE USE OF THE "IM PROB GANNA GET SHOT" TEXT SENT BY HADBAI

A. The issue stated

[176] Both appellants submit the trial judge erred in instructing the jury about the use it could make of the text message sent by Hadbai to his girlfriend, Gorges, about 10 minutes before the parking lot fight: "Im prob ganna get shot can u wait plz."

[177] In a pre-trial ruling, the trial judge held that:

The text message and the evidence surrounding this statement is non-hearsay and, therefore, admissible as circumstantial evidence of the deceased's state of mind or present intention prior to being shot. It is not admissible for the truth of its contents to establish that the acts or events referred to in the statement actually occurred and the jury will be so advised at the appropriate time.

[178] During the testimony of Gorges, the recipient of the text, the trial judge instructed the jury about the use they could make of the text:

That evidence can only assist you with respect to the state of mind of a declarant and not for the truth of the contents or the facts asserted in that text message. You may only use it to assist you with the state of mind or present intention of the sender, the declarant, in this case Said Hadbai, and only for that purpose.

[179] The trial judge specifically dealt in his charge with the use the jury could and could not make of this text. He stated:

Should you choose to accept the text message of Mr. Hadbai as related through Ms. Gorge's testimony in conjunction with the actual text message itself, as I instructed you during the course of this trial, you may only use this statement for the limited purposes of assessing Mr. Hadbai's state of mind or present intention, and what he did or said, or did not do, or did not say subsequent to sending the text message. You will recall that despite sending the text message, Mr. Hadbai still lingered in the immediate vicinity just outside Jack's Bar for at least 15 minutes. Subsequently, Mr. Hadbai and his colleagues then followed Mr. O'Hara-Salmon and Mr. Phillips across Richmond Street to the parking lot in anticipation of some altercation. You may want to consider the text message in conjunction with Mr. Hadbai's subsequent actions and the entirety of the evidence.

Again, even if you accept that a certain statement in the text message referred to something about to happen, you may not use this evidence for the truth of its contents. In other words, it cannot be used for the assertion or fact that Mr. Hadbai was probably going to get shot. You must not use this evidence to conclude or infer Mr. O'Hara-Salmon's or Mr. Phillips' intent, actions or states of mind or for any other purpose.

[180] The appellants take no issue with the correctness of these instructions. However, O'Hara-Salmon advances an argument that references made to the text by counsel and the trial judge seemingly left it open to the jury to use the text as evidence that O'Hara-Salmon had threatened to shoot the deceased.

B. Analysis

[181] O'Hara-Salmon points to portions of the closings by Phillips and the Crown as suggesting the jury could use the text for the truth of its contents. He also contends a similar suggestion can be teased out of the following statement by the trial judge of the Crown's position: "After the confrontation with Drai, Said was worried that he was probably going to get shot. He sent a text message to his girlfriend, Ms. Gorges, indicating that he was 'probably ganna get shot' and asked her to wait."

[182] With respect, I see no merit in this submission. The trial judge accurately stated the evidence. As to whatever impressions counsel may have left about the text in their closings, the trial judge gave clear instructions to the jury following those closings about the uses they could and could not make of the text. The last words, so to speak, were instructions by the trial judge, the correctness of which the appellants do not challenge.

IX. EFFECT ON PHILLIPS OF THE DECISION CONCERNING THE PARTY LIABILITY OF O'HARA-SALMON

[183] In his factum, Phillips submits that any error undermining the verdict against O'Hara-Salmon must undermine the verdict against him because "the only route to a conviction for first degree murder against Phillips was the allegation that O'Hara-Salmon and Phillips had jointly engaged in a planned and deliberate murder." Phillips' counsel did not elaborate on this submission during oral argument.

[184] I do not accept this brief submission. Towards the end of his charge, the trial judge stated:

In arriving at your verdict, you shall deliberate on each accused individually. You shall consider all of the evidence and apply the legal principles that I have described to address each accused's verdict separately. The evidence and the issues raised in this case leave four verdicts for you to consider with respect to each of Mr. O'Hara-Salmon and Mr. Phillips: not guilty, guilty of manslaughter, guilty of second-degree murder, guilty of first degree murder.

[185] At trial, counsel for Phillips did not object to this instruction. Before this court, Phillips did not challenge the correctness of this instruction. Consequently, I see no basis for this ground of appeal.

X. CONCLUSION ON PHILLIPS' APPEAL

[186] For the reasons set out above, I would dismiss Phillips' appeal.

PART 3 – O'HARA-SALMON'S APPEAL

I. THE ISSUES ON O'HARA-SALMON'S APPEAL

[187] On his appeal, O'Hara-Salmon raises several issues distinct from those raised by Phillips. He identifies the following discrete grounds of appeal:

(i) The trial judge failed to instruct the jury properly on the elements of being a participant under ss. 21(1) or (2) to the offence charged, including erring in defining murder;

(ii) He refused to relate the W.(D.) analysis for Phillips' evidence in assessing the guilt of O'Hara-Salmon: R. v. W.(D.), [1991] 1 S.C.R. 742;

(iii) He failed to explain how the evidence related to the law; and,

(iv) The verdict was unreasonable.

[188] As well, O'Hara-Salmon adopts Phillips' submissions concerning self-defence, provocation, the failure to give a rolled-up charge, the "get the thing" text, and the "Im prob ganna get shot" text. I have set out above how I would dispose of those grounds on Phillips' appeal; my conclusions apply equally to O'Hara-Salmon's appeal.

II. THE CHARGE CONCERNING O'HARA-SALMON'S PARTICIPATION IN THE OFFENCE OF FIRST DEGREE MURDER UNDER SS. 21(1)(B) AND (C) AND 21(2) OF THE CRIMINAL CODE

A. Section 21(1)(b) and (c): Aiding and abetting

(1) The issue stated

[189] The Crown did not allege O'Hara-Salmon was guilty of first degree murder as a principal who actually committed the offence. Instead, the Crown alleged he was a party to the offence of first degree murder either as an aider or abettor under ss. 21(1) (b) or (c), or on the basis of common intention under s. 21(2). The trial judge charged the jury accordingly.

[190] O'Hara-Salmon submits the trial judge made two errors when charging the jury on the issue of aiding or abetting under ss. 21(1) (b) and (c) of the Criminal Code. He argues the trial judge:

(i) failed to explain that aiding or abetting could lead to a conviction for manslaughter, or that O'Hara-Salmon could be found guilty of a less serious offence than Phillips; and

(ii) failed to define the mens rea required to prove O'Hara-Salmon aided or abetted Phillips in committing first degree murder. Specifically, he failed to instruct the jury the Crown had to prove, beyond a reasonable doubt, that O'Hara-Salmon aided or abetted Phillips knowing Phillips intended to commit a planned and deliberate murder. Instead, the trial judge erroneously instructed the jury to consider whether O'Hara-Salmon, himself, had the required mens rea for murder or planned and deliberate murder.

[191] In response, the Crown submits the trial judge carefully and correctly defined the elements of aiding and abetting. He correctly stated the required mens rea consisted of the need to establish O'Hara-Salmon knew Phillips' intentions and he intended to help or encourage Phillips. Throughout, the trial judge emphasized the need for the Crown to prove O'Hara-Salmon was a party beyond a reasonable doubt.

[192] For the reasons below, I would not accept O'Hara-Salmon's submissions.

(2) The governing legal principles

[193] Section 21(1) of the Criminal Code defines party liability as follows:

21(1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

[194] A person may be found guilty of first degree murder as a secondary participant in a planned and deliberate murder: [R. v. Almarales, 2008 ONCA 692](https://www.canlii.org/en/on/onca/doc/2008/2008onca692/2008onca692.html), 237 C.C.C. (3d) 148, at para. 68.

[195] The actus reus and mens rea for aiding and abetting are distinct from those of the principal offence: [R. v. Briscoe, 2010 SCC 13](https://www.canlii.org/en/scc/doc/2010/2010scc13/2010scc13.html), [2010] 1 S.C.R. 411, at para. 13. The actus reus consists of doing or, in some circumstances, omitting to do something that assists or encourages the perpetrator to commit the offence: Briscoe, at para. 14.

[196] The mens rea for aiding has two components: intent and knowledge. The Crown must prove the aider (i) intended to help the principal commit the offence and (ii) knew that the principal intended to commit the offence, although the Crown need not prove that the aider knew precisely how the principal would commit the offence: Briscoe, at paras. 16-17. An aider can only intend to assist the perpetrator in the commission of the crime if the aider knows the crime that the perpetrator intends to commit: [R. v. Maciel, 2007 ONCA 196](https://www.canlii.org/en/on/onca/doc/2007/2007onca196/2007onca196.html), 219 C.C.C. (3d) 516, at para. 88, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 258.

[197] In respect of a charge of first degree murder, this court in Almarales described, at para. 70, the fault requirement the Crown must prove:

An aider must know that the principal intends to commit a planned and deliberate murder, and intend to help the principal to commit a planned and deliberate murder. The aider may acquire his or her knowledge that the murder is planned and deliberate through actual participation in the planning and deliberation, or by some other means. The means of acquiring knowledge are as irrelevant to culpability as proof of knowledge is essential to it. Maciel at para. 89. [Emphasis in original.]

See also: R. v. Bottineau, [2006] O.J. No. 1864 (S.C.), at para. 93, aff'd 2011 ONCA 194, 269 C.C.C. (3d) 227, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 455; R. v. Haché, 2007 NBCA 79, 227 C.C.C. (3d) 162, per Drapeau C.J., dissenting, at para. 32.

[198] In Briscoe, the Supreme Court clarified, at para. 16, that the "purpose" requirement contained in s. 21(1) (b) does not incorporate the notion of "desire" into the fault requirement for party liability. As a result, there is no additional requirement that an aider or abettor subjectively approve of, or desire, the victim's death. The court cautioned, at para. 18, against misreading its earlier statement on this point in [R. v. Kirkness](https://www.canlii.org/en/scc/doc/1990/1990canlii57/1990canlii57.html), [1990] 3 S.C.R. 74:

While some of the language in Kirkness may be read as requiring that the aider share the murderer's intention to kill the victim, the case must now be read in the light of the above-noted analysis in Hibbert. The perpetrator's intention to kill the victim must be known to the aider or abettor; it need not be shared. Kirkness should not be interpreted as requiring that the aider and abettor of a murder have the same mens rea as the actual killer. It is sufficient that he or she, armed with knowledge of the perpetrator's intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor must intend that the principal offence be committed. [Italics in original; underlining added.]

(3) Analysis

(a) First ground of appeal: The trial judge failed to leave manslaughter as an available verdict

[199] O'Hara-Salmon submits the trial judge erred in his charge by failing to explain that aiding or abetting could lead to a conviction for manslaughter.

[200] I do not accept this submission. The trial judge clearly instructed the jury that aiding or abetting could lead to a conviction for manslaughter.

[201] Where an accused's liability for first degree murder rests on secondary participation, the trial judge's final instructions must leave the jury with a clear understanding of what the prosecution has to prove to establish the person's guilt as an aider or abettor of first degree murder. In assessing whether the final instructions meet these objectives, consideration must be given not only to the charge, but to the decision trees provided to the jury: [Almarales, at para. 86](https://www.canlii.org/en/on/onca/doc/2008/2008onca692/2008onca692.html).

[202] In the present case, the trial judge prepared separate decision trees to assist the jury in their deliberations of the culpability of each appellant. In the case of O'Hara-Salmon, the trial judge structured his instructions to deal first with participation as a party under ss. 21 (b) and (c) of the Criminal Code. If the jury concluded participation as a party via those modes was not established beyond a reasonable doubt, the charge – accompanied by the trial judge's references to the decision tree – required them to consider participation under s. 21(2). In his summary of the s. 21(1) issues, the trial judge made clear that a verdict of manslaughter was one possible outcome of the jury's consideration of O'Hara-Salmon's participation.

[203] Similarly, in his charge the trial judge explained that should the jury find O'Hara-Salmon aided or abetted Phillips in unlawfully causing Hadbai's death, they were required to consider what he styled as Question 3: Did O'Hara-Salmon "have the state of mind required for murder as a party to the offence?" The trial judge specifically included the words "as a party to the offence" in response to submissions by O'Hara-Salmon's counsel during a pre-charge conference. The charge, and the decision tree, clearly instructed that if the jury found O'Hara-Salmon did not have such a state of mind, O'Hara-Salmon would not be guilty of first degree murder, but guilty of manslaughter.

(b) Second ground of appeal: The trial judge failed to define the mens rea for aiding and abetting first degree murder

[204] O'Hara-Salmon submits the trial judge failed to define properly the mens rea required to prove he aided or abetted Phillips in committing first degree murder. He argues the trial judge erroneously instructed the jury to consider whether O'Hara-Salmon, himself, had the required mens rea for murder or planned and deliberate murder, instead of determining whether the Crown had established O'Hara-Salmon aided or abetted Phillips knowing Phillips intended to commit murder or commit a planned and deliberate murder.

[205] Before I explain why I do not accept this submission, let me dispose of a minor related issue O'Hara-Salmon raises on this matter.

[206] Prior to giving the part of his charge dealing with O'Hara-Salmon, the trial judge provided the jury with a separate decision tree in respect of the charges against O'Hara-Salmon. After instructing the jury that they must find O'Hara-Salmon not guilty in the event self-defence was established in respect of Phillips, he then gave instructions on whether O'Hara-Salmon was a party to Hadbai's unlawful death. The trial judge instructed, in turn, on the allegations that O'Hara-Salmon was culpable as an aider, abettor, or as a participant in a joint criminal venture.

[207] No issue is taken on appeal with the trial judge's instructions on abetting. In regard to his charge on aiding, the trial judge gave standard, general instructions on the actus reus, the need to demonstrate the aider must intend to help the principal, and the requirements to establish the aider knows the principal intends to commit an offence.

[208] In describing the offence at issue, the trial judge stated:

Aiding relates to a specific offence, in this case murder. An aider must intend that the offence be committed, or know that the other person intends to commit it and intends to help that person accomplish his or her goal. A person commits an offence if he, alone or along with someone else or others, personally does everything necessary to constitute the offence. [Emphasis added.]

[209] As a minor point, O'Hara-Salmon argues the trial judge erred by including in his charge the phrase: "An aider must intend that the offence be committed." I am not persuaded by this argument. First, the trial judge included correct instructions on the required elements of intention and knowledge: "An aider must … know that the other person intends to commit it and intends to help that person accomplish his or her goal." Second, the additional phrase to which O'Hara-Salmon now objects appears to have found its way into the charge as a result of a request made by counsel for O'Hara-Salmon at the December 23, 2014 pre-charge conference, relying on Kirkness. Counsel for O'Hara-Salmon did not draw the trial judge's attention to the passage from Briscoe, set out above in para. 198, where the Supreme Court clarified how Kirkness should be read.

[210] But, this is a minor point. O'Hara-Salmon's main complaint about this part of the charge is that the trial judge failed to link the requirements of intention and knowledge under ss. 21(1)(b) or (c) to the charged offence of first-degree murder.

[211] In the portion of his charge dealing with ss. 21(1) (b) and (c), the trial judge referred to the offence either as "murder" or as unlawfully causing Hadbai's death. The trial judge dealt with the issue of O'Hara-Salmon's state of mind for murder, and planned and deliberate murder, in two subsequent sections of his charge. In each, he framed the issue in respect of O'Hara-Salmon as one concerning him as a "party to the offence." However, in each he instructed the jury using language that treated O'Hara-Salmon as a co-principal with Phillips.

[212] I appreciate that by doing so the trial judge set the mens rea bar higher than necessary. A conviction for first degree murder as an aider or abettor does not require demonstrating the accused shared the murderer's intention to kill the victim. However, several factors lead me to conclude that in the circumstances of this case, the trial judge's setting of the mens rea bar higher than necessary did not prejudice O'Hara-Salmon:

• The trial judge correctly instructed the jury on the two components of mens rea for aiding or abetting;

• It was open to the jury to find that O'Hara-Salmon, as an aider or abettor, acquired his knowledge that the murder was planned and deliberate through actual participation in the planning and deliberation: Almarales, at para. 70. The jury's verdict indicated it was satisfied beyond a reasonable doubt that O'Hara-Salmon had participated in the murder's planning and deliberation;

• The decision tree accompanying the charge first directed the jury to consider whether O'Hara-Salmon had the state of mind required for murder as a party to the offence and, if he did, to then consider whether his "murder of Said Hadbai as a party to the offence [was] planned and deliberate." The trial judge used that language at the request of O'Hara-Salmon's counsel; and

• While not determinative, it is significant that apart from requesting the change to the decision tree's language just mentioned, which the trial judge made, O'Hara-Salmon's counsel did not otherwise object to how the trial judge linked the requirements for the mens rea of aiding and abetting with those for a planned and deliberate murder.

[213] For these reasons, I would not give effect to this ground of appeal.

B. Section 21(2): Common purpose

(1) The issue stated

[214] O'Hara-Salmon submits the trial judge made reversible errors in the charge on applying the common purpose doctrine in s. 21(2) of the Criminal Code. The appellant's over-arching complaint is that the trial judge made "the instructions more complicated than necessary" and they "would have been very difficult to follow". O'Hara-Salmon breaks down his over-arching complaint into four discrete submissions. He argues the trial judge:

(i) made no clear distinction between manslaughter and murder because he failed to separate the mens rea requirement for manslaughter under the common purpose doctrine from that required for murder;

(ii) failed to provide guidance on the elements of the possible offences that were the subject of agreement;

(iii) gave conflicting instructions on the unanimity requirement for common purpose; and

(iv) failed to instruct that in forming a common purpose, the Crown had to prove O'Hara-Salmon knew a planned and deliberate murder was the probable consequence of carrying out their original purpose.

[215] In response, the Crown submits the trial judge painstakingly and properly instructed the jury on the elements of the common intention mode of participation and the evidence bearing on the issue.

[216] For the reasons that follow, I would not accept O'Hara-Salmon's submissions.

(2) The pre-charge conference, ruling, and charge

[217] The trial judge initially did not intend to include in his charge any instruction on the common intention mode of participation for O'Hara-Salmon because it lacked an air of reality. Crown counsel pressed for its inclusion, advocating a variety of firearms offences as the predicate offences for the common purpose. Counsel for O'Hara-Salmon contended there was no basis to instruct on s. 21(2) because there was no evidence O'Hara-Salmon knew about the gun Phillips carried.

[218] After the first pre-charge conference, the trial judge altered his position and ruled he would instruct the jury in respect of O'Hara-Salmon's participation under s. 21(2). He accepted there were a number of underlying firearms offences in respect of which the jury could find O'Hara-Salmon party to a common unlawful purpose. He concluded: "[G]iven the inferences that can be drawn from the evidence, some of which I have already described, Mr. O'Hara-Salmon is capable of being convicted of either murder or manslaughter as a party under either s. 21(1) (b), s. 21(1)(c), or 21(2) of the Criminal Code."

[219] During the course of a further pre-charge conference following his ruling, the trial judge observed that the evidence on s. 21(2) was "thin." I note that O'Hara-Salmon does not challenge the trial judge's conclusion that there was an air of reality to s. 21(2) and, accordingly, his decision to charge the jury under this ground of party liability.

(3) The governing legal principles

[220] Section 21(2) of the Criminal Code extends liability to those whose participation in the offence actually committed would not be captured by s. 21(1). Section 21(2) states:

Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[221] The offence to which s. 21(2) extends liability is not the original "unlawful purpose" to which the subsection refers; it is a different crime, one that a participant in the original "unlawful purpose" commits in carrying out that original purpose: [R. v. Simon, 2010 ONCA 754](https://www.canlii.org/en/on/onca/doc/2010/2010onca754/2010onca754.html), 104 O.R. (3d) 340, at para. 42, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 459.

[222] Liability of a person under s. 21(2) requires proof of three elements: agreement; offence; and knowledge: Simon, at paras. 42-43; [R. v. Cadeddu, 2013 ONCA 729](https://www.canlii.org/en/on/onca/doc/2013/2013onca729/2013onca729.html), 304 C.C.C. (3d) 96, at paras. 56-62.

[223] A person may be found liable for murder under s. 21(2). As this court explained in [R. v. Portillo (2003)](https://www.canlii.org/en/on/onca/doc/2003/2003canlii5709/2003canlii5709.html), 176 C.C.C. (3d) 467 (Ont. C.A.), at para. 72, liability for murder under s. 21(2) requires the Crown to prove beyond a reasonable doubt that (i) the accused was a party to a common unlawful design, (ii) another person who was a party to that same common design committed murder as defined in s. 229(a) in the course of carrying out the common design, and (iii) the accused knew that murder was a probable consequence of carrying out the common unlawful design. This court continued, at para. 73:

If the Crown proves the first two of the three elements described above, but fails to prove that the accused knew that murder was a probable consequence of carrying out the common design, the accused is not guilty of murder but is guilty of manslaughter if a reasonable person would have foreseen the risk of harm to the deceased as a result of carrying out the common design to steal from him: R. v. Jackson, [1993] 4 S.C.R. 573.

[224] The mental elements for liability under s. 21(2) are the formation of an intention in common, an intention to assist, and knowledge that the principal offender would probably commit murder: [R. v. Ferrari, 2012 ONCA 399](https://www.canlii.org/en/on/onca/doc/2012/2012onca399/2012onca399.html), 287 C.C.C. (3d) 503, at para. 62. As this court stated in [R. v. Jackson (1991)](https://www.canlii.org/en/on/onca/doc/1991/1991canlii11739/1991canlii11739.html), 68 C.C.C. (3d) 385 (Ont. C.A.), at p. 424:

Where, however, liability is based on s. 21(2), there is no participation in the act which caused death but rather foresight that another would commit such an act. Culpability for the incidental offence flows almost entirely from foresight that that offence would be committed by another.

[225] To leave for the jury's consideration the liability of a person under s. 21(2) requires some evidence of the basis on which a reasonable jury, properly instructed, could make the findings of fact necessary to establish each element of this mode of participation: Simon, at para. 43. Further, a proper instruction requires the trial judge to explain each of the three elements – agreement, offence and knowledge – and relate the evidence to those elements: [Cadeddu, at para. 35](https://www.canlii.org/en/on/onca/doc/2013/2013onca729/2013onca729.html); [R. v. Gagné, [1998] Q.J. No. 580 (C.A.)](https://www.canlii.org/en/qc/qcca/doc/1998/1998canlii8611/1998canlii8611.html), at para. 17.

[226] When s. 21(2) is engaged for the offence of murder, s. 7 of the [Canadian Charter of Rights and Freedoms](https://laws-lois.justice.gc.ca/eng/const/page12.html) requires that the accused must have actual knowledge that murder would be a probable consequence of the unlawful purpose. A conviction for murder cannot be based on the ground that the accused ought to have known that murder would be a probable consequence: [R. v. Young, 2009 ONCA 549](https://www.canlii.org/en/on/onca/doc/2009/2009onca549/2009onca549.html), 246 C.C.C. (3d) 417, at para. 6, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 462; [Ferrari, at para. 61](https://www.canlii.org/en/on/onca/doc/2012/2012onca399/2012onca399.html); [R. v. Logan](https://www.canlii.org/en/scc/doc/1990/1990canlii84/1990canlii84.html), [1990] 2 S.C.R. 731, at pp. 747-48.

[227] Against the background of these general principles, I shall consider the four submissions made by O'Hara-Salmon.

(4) Analysis

(a) The trial judge failed to distinguish between available verdicts for manslaughter and murder under s. 21(2)

[228] O'Hara-Salmon submits the trial judge did not separate the mens rea required for manslaughter under the common purpose doctrine from that required for murder. More specifically, he contends the trial judge never clarified that one of the knowledge elements in s. 21(2) related to a manslaughter conviction and the other to a murder conviction.

[229] I disagree. In his charge, the trial judge clearly explained that the alternative knowledge elements under s. 21(2) – "who knew or ought to have known" – engaged an assessment of two different types of foresight: subjective and objective. He also explained that different verdicts were available under each: "It is important to understand that for an intention in common, depending on your conclusions as to the subjective knowledge or objective probable and foreseeable consequences, the final verdicts will differ."

[230] He instructed the jury that should they find culpability established under the objective foresight branch of s. 21(2) – "ought to have known" - they could not convict of murder, but only of manslaughter. The decision tree provided by the judge to the jury clearly tracked these instructions.

(b) The trial judge failed to provide guidance on the elements of the possible offences that were the subject of agreement

[231] In his charge, the trial judge instructed the jury that the common unlawful purpose:

[C]ould encompass a whole host of firearms-related offences, including but not limited to possession of a weapon for a dangerous purpose, use of a firearm in the commission of an indictable offence, careless use of a firearm, pointing a firearm, carrying a concealed weapon or possess a loaded prohibited firearm with ammunition.

[232] O'Hara-Salmon submits that by not providing guidance on the elements of the predicate offences, the trial judge erred by confusing the jury because they would not understand the Crown had to show O'Hara-Salmon actively formed an agreement with Phillips to carry the weapon.

[233] I do not accept this submission. First, the detail with which a trial judge must describe the predicate offences will vary with the circumstances. Watt's Manual of Criminal Instructions, 2d ed., merely suggests, at p. 460, "describe briefly common unlawful purpose".

[234] Second, trial counsel for O'Hara-Salmon did not object to the charge on the basis that a failure to describe the predicate offences in depth would confuse the jury. To the contrary, he argued that leaving the common purpose mode to the jury strained the structure of s. 21(2) in part because of the simple nature of the predicate offence – "We have a simple possession of a firearm … We just have the possession of a firearm."

[235] Finally, the evidence available for the jury to consider about the predicate offences was not complex: Phillips possessed an illegal firearm, the sawed-off shotgun; he took the gun with him in Lovell's car; Lovell drove him to Jack's; O'Hara-Salmon got into the car; Phillips and O'Hara-Salmon left the car and walked down the alleyway; Phillips had the gun in his pant leg; they paused at the end of the alley; then crossed the street to the parking lot, where O'Hara-Salmon was to fight Hadbai; the fight started; Phillips pulled out the sawed-off shotgun and killed Hadbai. In those circumstances, there was no need for the trial judge to describe the elements of the predicate offences in depth in order for the jury to understand the nature of the unlawful common purpose available for them to consider.

(c) The trial judge gave conflicting instructions on the unanimity requirement for common purpose

[236] O'Hara-Salmon next submits the trial judge gave conflicting instructions on the unanimity required to find him culpable via s. 21(2). In one part of his charge, the trial judge stated the jury did not "have to all agree whether Mr. O'Hara-Salmon aided, abetted or had an intention in common with Mr. Phillips", while elsewhere he instructed that the jury had to "be unanimous in your decision beyond a reasonable doubt of the intention to commit a common unlawful purpose in order to find Mr. O'Hara-Salmon guilty of an offence."

[237] I do not accept this submission. When the charge is read as a whole, the trial judge clearly informed the jury that if they found O'Hara-Salmon committed the offence in more than one way, they did not all have to agree guilt had been proven in the same way. At the start of the section on s. 21, the trial judge charged the jury: "Crown counsel is entitled to rely on different ways of committing the offence. Proof of any way will do." He repeated that instruction several times. He also stated: "All of you do not have to agree on the same way, as long as everyone is sure that one of the required ways has been proven beyond a reasonable doubt."

[238] The comment impugned by O'Hara-Salmon was made during the course of the trial judge's review of the various steps described in the decision tree dealing with party liability. His review implied the jury had rejected one mode of participation, but could then proceed to consider another. This part of his charge was prefaced with the following clear instruction:

In summary, in your consideration of whether Mr. O'Hara-Salmon was a party to the offence, you do not have to all agree whether Mr. O'Hara-Salmon aided, abetted or had an intention in common with Mr. Phillips, as long as you all agree that he either aided, abetted or had an intention in common with Mr. Phillips in the unlawful killing of Mr. Hadbai.

[239] Accordingly, I see no error in this part of the charge.

(d) The trial judge failed to provide a proper instruction where the offence alleged was first-degree murder

[240] Lastly, O'Hara-Salmon submits the trial judge failed to instruct the jury that to establish liability for first degree murder pursuant to s. 21(2) the Crown must prove that, in forming a common intention with Phillips to commit one unlawful act, the accused must know a planned and deliberate murder was the probable consequence.

[241] At trial, counsel for O'Hara-Salmon did not raise such an objection. Instead, he focused on ensuring the charge on s. 21(2) made available for consideration a verdict of manslaughter. Although not determinative of this issue, the absence of such an objection is telling.

[242] The trial judge instructed the jury on both the subjective and objective foreseeability branches of knowledge contained in s. 21(2). At the start of his charge on the knowledge requirement, the trial judge stated:

Now the third element, "knowledge", may be proven in either of two ways. Crown counsel may prove beyond a reasonable doubt that Drai O'Hara-Salmon actually knew that one of the participants in the original agreement, Jemaine Phillips, would probably murder Said Hadbai in carrying out their original agreement. Probably means likely, not just possibly.

[243] To illustrate this element, the trial judge presented the jury with an example of a situation where the participant would be guilty of second degree murder. He continued:

To determine whether knowledge has been proven on this basis, you should ask yourselves whether you are satisfied beyond a reasonable doubt that if there was an intention in common in the unlawful agreement, Mr. O'Hara-Salmon knew Mr. Phillips possessing a loaded shotgun, would foresee that the murder of Said Hadbai was a probable consequence.

[244] The trial judge repeated similar language several times, in each case framing the inquiry as to whether O'Hara-Salmon subjectively foresaw that murder was a probable consequence of carrying out the common intention.

[245] Given that O'Hara-Salmon was charged with the offence of first degree murder, it would have been preferable for the trial judge to refer specifically to that offence in this part of his charge. However, as the charge progressed the trial judge constantly referred to the decision tree to explain to the jury the state of mind necessary to find O'Hara-Salmon guilty of murder (Box 3 of the decision tree) or a planned and deliberate murder (Box 4). When the charge is considered together with the decision tree, I am satisfied the jury would have understood that the Crown had to prove beyond a reasonable doubt that O'Hara-Salmon subjectively knew that a planned and deliberate murder was a probable consequence of carrying out the common unlawful design in order to convict him of first degree murder. Accordingly, I would not give effect to this ground of appeal.

[246] Before moving on to deal with the next ground of appeal, I will consider a submission made by O'Hara-Salmon at the end of his argument on s. 21(2). His main submissions regarding s. 21(2) focused on the sufficiency and clarity of the trial judge's instructions on the section. However, O'Hara-Salmon concluded his s. 21(2) submissions by querying whether the section should have been left with the jury on a charge of first degree murder.

[247] O'Hara-Salmon suggested there was an "illogicality" in trying to combine the common purpose doctrine with a planned and deliberate "consequential murder." He pointed out that some authorities support the view that s. 21(2) can be used for a charge of first degree murder: [Gagné, at para. 17](https://www.canlii.org/en/qc/qcca/doc/1998/1998canlii8611/1998canlii8611.html); [Bottineau, at paras. 92 and 94](https://www.canlii.org/en/on/onca/doc/2011/2011onca194/2011onca194.html). Other cases express a contrary view: [Haché, at para. 34](https://www.canlii.org/en/nb/nbca/doc/2007/2007nbca79/2007nbca79.html); [R. v. Hong, 2015 ONSC 4562](https://www.canlii.org/en/on/onsc/doc/2015/2015onsc4562/2015onsc4562.html), at para. 26. O'Hara-Salmon observed the issue was a source of controversy in the law.

[248] I would leave the question of whether s. 21(2) applies to a case in which it has been squarely raised and fully argued. It need not be decided in this case as I have concluded the trial judge adequately instructed the jury on the elements of ss. 21(1) (b)/(c) and 21(2) in respect of the offence of first degree murder. In order to convict on first degree murder, the jury was required to be satisfied beyond a reasonable doubt that O'Hara-Salmon either knew Phillips intended to commit a planned and deliberate murder or knew Phillips would probably commit a first degree murder. The jury's verdict signified it was satisfied the Crown had proven such a state of mind of O'Hara-Salmon beyond a reasonable doubt. Accordingly, leaving s. 21(2) with the jury as a possible route to culpability did not prejudice O'Hara-Salmon in the circumstances of this case.

III. FAILURE TO GIVE A W.(D.) INSTRUCTION CONCERNING O'HARA-SALMON

A. The issue stated

[249] O'Hara-Salmon called a number of witnesses at trial, most of whom were present at Jack's Bar or in the parking lot on the night of the shooting. O'Hara-Salmon did not testify. Phillips testified in his defence; he did not call any other witness.

[250] O'Hara-Salmon takes no issue with the trial judge's general instructions on the presumption of innocence and burden of proof. However, he submits the trial judge erred in refusing to include in the charge a W.(D.) instruction regarding exculpatory evidence in his favour.

[251] At trial, O'Hara-Salmon's counsel had requested such an instruction. After pointing out O'Hara-Salmon had called evidence and Mr. Phillips had testified, counsel submitted that:

[E]ven if someone like is in Mr. O'Hara's situation, he doesn't testify but evidence merges from the Crown's case as well as evidence that is called on his defence, that he's entitled to as well the W.D. instruction about if this – and what's important here, of course, is on all these issues, whether or not even if the jury doesn't accept all of his evidence, or evidence called on his behalf, or that emerged from the Crown's case, it's still important to say, does this raise a reasonable doubt. It's evidence that favours Mr. O'Hara-Salmon's position. So, I would again just as the evidence goes to accused "A" and accused "B", uniquely and solely the evidence it's applicable to them, as you say respectively. I think a W.D. inquiry or whatever terminology you chose to use that applies to Mr. O'Hara-Salmon is important in all the circumstances.

[252] In making that submission, counsel did not identify for the trial judge any specific exculpatory evidence that would attract a W.(D.) type instruction.

[253] The trial judge declined to include such an instruction stating: "I've indicated that already in the charge and already how the evidence of Mr. Phillips applies to O'Hara-Salmon as well. I'm not going to add another W.D. There are three W.D. cautions in my charge."

[254] On appeal, O'Hara-Salmon submits that in the absence of a W.(D.) instruction in relation to him, the jury would not understand that since they had to approach Phillips' evidence using a W.(D.) type of analysis, they had to take the same approach when assessing Phillips' evidence on the count against O'Hara-Salmon. He argues that even though Phillips' evidence on self-defence did not raise a reasonable doubt with the jury, it could have raised one on the issue of O'Hara-Salmon's participation in an offence. All of Phillips' evidence would have supported O'Hara-Salmon's position that he was not guilty.

[255] The respondent submits the trial judge's instructions to the jury regarding reasonable doubt were comprehensive and correct. In his charge and decision tree, the trial judge reminded the jury the result they reached on the central issue of self-defence by Phillips was also applicable to O'Hara-Salmon. The charge on self-defence contained numerous references to the Crown's burden to prove beyond a reasonable doubt the absence of one of the defence's elements. The respondent submits the jury would not have misunderstood the concept of the burden on the Crown to disprove self-defence and prove the elements of first degree murder beyond a reasonable doubt.

B. Analysis

[256] Where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard: [R. v. S. (J.H.), 2008 SCC 30](https://www.canlii.org/en/scc/doc/2008/2008scc30/2008scc30.html), [2008] 2 S.C.R. 152, at para. 8. A trial judge need not use "some magic incantation" to explain that relationship. Instead, W.(D.)'s message is "that it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt": S. (J.H.), at para. 13.

[257] In [R .v D. (B.), 2011 ONCA 51](https://www.canlii.org/en/on/onca/doc/2011/2011onca51/2011onca51.html), 266 C.C.C. (3d) 197, this court explained, at para. 114, that the principles underlying W.(D.) are not confined to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. Instead:

Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: Challice. In that event, they must acquit.

[258] In the cases relied upon by O'Hara-Salmon where potentially exculpatory evidence attracted the need for a W.(D.) instruction, the exculpatory evidence concerned the central issue of the identity of the perpetrator: for example, exculpatory portions of the accused's statement to the police that he did not swing the hammer that struck the deceased: [R. v. Bucik, 2011 ONCA 546](https://www.canlii.org/en/on/onca/doc/2011/2011onca546/2011onca546.html), 274 C.C.C. (3d) 421, at para. 32; evidence of the accused's son in an incest case as to whether the co-accused was his brother or step-father: [D. (B.), at para. 97](https://www.canlii.org/en/on/onca/doc/2011/2011onca51/2011onca51.html); and exculpatory evidence from several witnesses that the accused, who was white, was not the robber, whom they recalled was black: [R. v. T.L., 2008 ONCA 763](https://www.canlii.org/en/on/onca/doc/2008/2008onca763/2008onca763.html), at para. 6.

[259] In the present case, the identity of the shooter was not in dispute. Nor was O'Hara-Salmon's presence in the parking lot at the time of the shooting. The theory O'Hara-Salmon put to the jury was that: the evidence showed Hadbai initiated the confrontation in Jack's Bar, which spilled out into the parking lot; O'Hara-Salmon had no motive to seek vengeance against Hadbai; and Hadbai "brought a knife to a fist fight", with tragic consequences:

Phillips thought the metal object in Said Hadbai's hand was a gun and shot to defend himself and Drai O'Hara-Salmon. So, in the final analysis there was no vengeful plan. No planned and deliberate scheme. No intention to kill Said Hadbai, that had been percolating for months. Unfortunately, it was this knife that cost Said Hadbai his life.

[260] On this defence theory, the vital issue involving credibility was Phillips' assertion that he shot Hadbai in self-defence. During the charge on self-defence, the trial judge repeatedly stated the Crown bore the burden of disproving beyond a reasonable doubt an element of the defence. He gave several W.(D.) instructions regarding Phillips' evidence. The trial judge reminded the jury it could "consider the in-court testimony of Mr. Phillips to help you decide the case of both accused persons on trial." Finally, in his charge and decision tree the trial judge clearly instructed the jury that if the Crown failed to prove Phillips caused Hadbai's death unlawfully, then the jury was required to acquit O'Hara-Salmon.

[261] In those circumstances, I see no error in the trial judge refusing to include in the charge a W.(D.) instruction specific to O'Hara-Salmon. The jury would have understood the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt. I would not give effect to this ground of appeal.

IV. DID THE CHARGE FAIL TO RELATE THE LAW TO THE EVIDENCE?

A. The issue stated

[262] O'Hara-Salmon submits the trial judge's charge failed to relate the law to the evidence on two key issues: (i) he did not assist the jury with how the evidence could support a finding that O'Hara-Salmon was a party to an offence under ss. 21(1) (b)/(c) or s. 21(2) of the Criminal Code; and (ii) he did not draw the jury's attention to the evidence that distinguished manslaughter from murder, or second degree murder from first degree murder.

[263] The respondent submits a functional and contextual approach must be taken to assess the adequacy of the trial judge's explanation of the evidence relevant to the legal issues. Applying such an approach, the trial judge's instructions adequately laid out for the jury the legal concepts and evidence bearing on the issues.

B. Analysis

[264] A trial judge has a general obligation to identify for the jury the issues and the evidence relevant to the issues: [R. v. Rodgerson, 2014 ONCA 366](https://www.canlii.org/en/on/onca/doc/2014/2014onca366/2014onca366.html), 309 C.C.C. (3d) 535, at para. 71; aff'd 2015 SCC 38, [2015] 2 S.C.R. 760. How far a trial judge should go in discussing the evidence depends upon the specifics of each case, including the nature and character of the evidence in relation to the charge, the issues raised, and the conduct of the trial: [R. v. Azoulay](https://www.canlii.org/en/scc/doc/1952/1952canlii4/1952canlii4.html), [1952] 2 S.C.R. 495, at p. 503; Rodgerson, at para. 73.

[265] When the trial judge's charge is read as a whole, I am satisfied it adequately related the evidence to the legal issue of O'Hara-Salmon's participation in the offence. Before dealing with the issue of O'Hara-Salmon's participation as a party, the trial judge reviewed the evidence in some detail, proceeding in a chronological fashion. When the trial judge turned to the issue of O'Hara-Salmon's participation in the offence, he clearly explained the type of conduct that would constitute aiding or abetting.

[266] The evidence relevant to the issues of aiding or abetting was not technical. For the most part, it consisted of the evidence about the events inside and outside of Jack's Bar on the evening of December 26, 2011 and the early morning hours of the following day. The evidence of those present in the bar or at the parking lot, including Phillips, was not overly involved. In those circumstances, the relevance of the witnesses' narrative evidence would have been direct and obvious to the jury. Further, in dealing with s. 21(2), the trial judge went over in some detail evidence relevant to whether there was an agreement between the appellants.

[267] O'Hara-Salmon, relying on this court's decision in Rodgerson, at para. 96, also submits the trial judge failed to draw the jury's attention to the evidence that distinguished manslaughter from murder, or second degree murder from first degree murder. I do not agree.

[268] When the trial judge dealt with Questions 3 (second degree murder) and 4 (first degree murder) on the decision tree, he reviewed in considerable detail evidence relevant to manslaughter, second degree murder, and first degree murder. At trial, O'Hara-Salmon took no objection to the adequacy of the review of the evidence relating to those issues.

[269] Accordingly, I am not persuaded the trial judge failed to adequately relate the evidence to the issues. I would not give effect to this ground of appeal.

V. UNREASONABLE VERDICT

A. The issue stated

[270] In a one paragraph submission in his factum, O'Hara-Salmon contends the verdict finding him guilty of first degree murder was unreasonable. He argues "the Crown's case at its highest amounted to evidence that [he] knew that Phillips was going to shoot the deceased." However, he submits there was no evidence to support a finding that he knew Phillips was going to shoot Hadbai with an intention to kill or with an intention to cause him bodily harm that Phillips knew was likely to cause death. O'Hara-Salmon contends the statements attributed to him – "Get the thing kp is here", "Him. Not him", and "I don't fight niggas, I shoot them" – together with his letter to Knowles stating he intended to "wet [Hadbai] up" and evidence of his alleged jealously of Hadbai, could not support a finding he wanted Hadbai to do anything more than bleed.

[271] O'Hara-Salmon did not address this ground of appeal in oral argument.

B. Analysis

[272] A jury verdict is unreasonable if it is one that a properly instructed jury, acting judicially, could not reasonably have rendered: [R. v. W.H., 2013 SCC 22](https://www.canlii.org/en/scc/doc/2013/2013scc22/2013scc22.html), [2013] 2 S.C.R. 180, at para. 26. An appellate court "must ask itself whether the jury's verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conclusion reached by the jury": W.H. at para. 2. Appellate review of a jury's verdict of guilt must be conducted within two boundaries, as stated in W.H. at paras. 27-28:

On one hand, the reviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded….

On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence... [T]he court is required to review, analyse and, within the limits of appellate disadvantage, weigh the evidence and consider through the lens of judicial experience, whether judicial fact-finding precludes the conclusion reached by the jury. Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury's conclusion conflicts with the bulk of judicial experience. [Citations omitted.] [Emphasis in original.]

[273] I read O'Hara-Salmon's factum as acknowledging the availability on the evidence of a verdict of manslaughter. I accept the respondent's submission that there was significant evidence placed before the jury which, if accepted, would enable it to conclude: O'Hara-Salmon had a motive, jealously, to want Hadbai killed; he recruited Phillips to accomplish that goal; and he gave Phillips directions outside of Jack's Bar identifying Hadbai. It was open to the jury to interpret the statements and letter referred to in para. 270 above as evidence supporting a finding of first degree murder against O'Hara-Salmon. I am not persuaded that weighing the evidence and considering it through the lens of judicial experience precludes the jury's finding. I would not give effect to this ground of appeal.

VI. SUMMARY

[274] For these reasons, I would dismiss O'Hara-Salmon's appeal.

PART 4 – DISPOSITION

[275] For the reasons set out above, I would dismiss the appeals of Phillips and O'Hara-Salmon.

Released: DMB Sep 28, 2017

"David Brown J.A." "I agree. E.E. Gillese J.A." "I agree. K. van Rensburg J.A."

[1] Sub-section 232(2) subsequently was amended by S.C. 2015, c. 29, s. 7.