Court of Appeal for Ontario

Date: November 30, 2018

Docket: C58511

Judges: Strathy C.J.O., Watt and Epstein JJ.A.

Between

Her Majesty the Queen

Respondent

and

Mohand Mohamad

Appellant

Counsel:

James Lockyer and Alexander Ostroff, for the appellant

Gillian Roberts, for the respondent

Heard: April 23-24, 2018

On appeal from the conviction entered by Justice John McIsaac of the Superior Court of Justice, sitting with a jury, on July 28, 2013, and from the sentence imposed on September 6, 2013, with reasons reported at 2014 ONSC 1354.

Watt J.A.:

Introduction

[1] Arash Bakhtaryani held two grudges. One was more deep-seated than the other. Both were about money. The same money. Bakhtaryani's money. And about how that money disappeared from the person to whom Bakhtaryani had entrusted it for safekeeping.

[2] Bakhtaryani held a grudge against Seyed Alireza "Ali" Amiri, a drug dealer with whom Bakhtaryani left $20,000 for safekeeping. Bakhtaryani suspected Amiri had been complicit in an alleged robbery at Amiri's residence in mid-2007. At that time, two masked men allegedly broke into Amiri's home and robbed him of $60,000. The money taken in the robbery included Bakhtaryani's $20,000.

[3] Bakhtaryani recovered about half of his loss through payments by Amiri and his father, some of which included proceeds of an insurance claim.

[4] Bakhtaryani harboured a more deep-seated grudge against Mohand Mohamad. Bakhtaryani believed Mohamad had set up the home invasion robbery at Amiri's residence.

[5] One cold January night, about three and one-half years after the robbery, all three men were at a stag party in a banquet hall in Vaughan. At different times, Bakhtaryani confronted both men in a room at the banquet hall.

[6] After a brief exchange inside the banquet hall, Bakhtaryani and Mohamad left within seconds of one another. Outside, they headed in the same direction. Each was armed. Bakhtaryani had one or two knives he had taken from a table in the banquet hall. Mohamad had a gun. A .45 calibre, fully loaded, semi-automatic handgun.

[7] Bakhtaryani and Mohamad met in a darkened laneway around the corner not far from an entrance to the banquet hall. There, Mohamad shot Bakhtaryani four times with the .45 calibre semi-automatic handgun he had brought with him. Bakhtaryani died of his wounds.

[8] Mohamad was charged with first degree murder. He admitted shooting and killing Bakhtaryani. He claimed that he shot Bakhtaryani in lawful self-defence. Or, at worst, that the killing was provoked, and thus his crime was manslaughter and not murder.

[9] A jury found Mohamad guilty of second degree murder. The trial judge imposed the mandatory sentence of imprisonment for life and set the parole ineligibility period at 16 years.

[10] Mohand Mohamad appeals his conviction. He also appeals the period of parole ineligibility fixed by the trial judge. These reasons explain why I am satisfied that both appeals fail and should be dismissed.

The Background Facts

[11] The relevant events that culminated in the shooting death of Bakhtaryani took place at the Paradise Banquet Hall on the evening of January 21, 2011. It was there, in the Queen Mary Room, that a stag party was being held for Shervin Mahravan, a friend of Mohand Mohamad.

[12] The Queen Mary Room is one of several rooms at the Paradise Banquet Hall. A veranda covers the entrance. The entrance doors lead to a vestibule. A second set of doors opens to a foyer. In the foyer there is a water fountain. Security cameras record events taking place in the room and foyer.

[13] Along the west side of the banquet hall a paved driveway passes under the veranda of the Queen Mary Room, continues south past the entrance to the Queen Anne Room, and then turns southeast around a corner for about 75 feet. The lane then jogs east beside the south wall of the banquet hall before it opens onto the south parking lot. Adjacent to the south wall are several lined parking spaces.

[14] Surveillance cameras record the portion of the driveway that lies next to the veranda of the Queen Mary Room, but not around the corner.

The Principals and their Relationship

[15] As mentioned, Bakhtaryani believed that Mohamad was involved in the robbery of Amiri. According to Amiri, Bakhtaryani had an obsession with revenge on those responsible. Amiri confronted Mohamad about his involvement. Mohamad denied it. He distanced himself from Bakhtaryani, whom he considered unpredictable. From time to time, Bakhtaryani also blamed Amiri for the robbery and sent him a series of threatening texts.

[16] In the months before he died, Bakhtaryani told Amiri that he was going to kill Mohamad. He explained to Amiri that he had figured out where Mohamad lived. The killing was to take place soon.

[17] Mohand Mohamad worked at a pet store and as a part-time car salesman. He was also a drug dealer who sold marijuana and some cocaine.

[18] In 2008, he bought a .45 calibre semi-automatic handgun for protection in his drug dealings, which included purchases of large amounts of marijuana from others with whom he was unfamiliar.

[19] At the time of the shooting, Bakhtaryani lived with Sean McDermott, a crucial Crown witness at Mohand Mohamad's trial.

The Stag Party

[20] On January 21, 2011 Shervin Mahravan held a stag party in the Queen Mary Room at Paradise Banquet Hall to celebrate his upcoming wedding. He gave tickets to his friends, including Mohand Mohamad. Sean McDermott attended the stag party with other invited guests. Bakhtaryani was not an invited guest.

[21] Amiri arrived about an hour after McDermott. McDermott greeted Amiri. This caused Amiri to become concerned that Bakhtaryani might appear. At 8:23 p.m. McDermott texted Bakhtaryani, "Get down here, that Ali crackhead is here".

Amiri and Bakhtaryani

[22] About one and one-half hours after McDermott sent him the text message, Bakhtaryani arrived at the banquet hall.

[23] Shortly thereafter, Bakhtaryani spoke to Amiri. At trial, Bakhtaryani was described as "shaking" and "angry" during this conversation. He asked Amiri to follow him. Amiri did so. They spoke again. Suddenly, Bakhtaryani slapped Amiri very hard, knocking Amiri back. Others separated the two men. Each went his own way into different parts of the ballroom.

[24] Amiri tried to reason with Bakhtaryani when they spoke again near the doors. Terrified of Bakhtaryani, Amiri left the banquet hall in a taxi.

The Arrival of Mohand Mohamad

[25] Shortly after 11:00 p.m. Mohand Mohamad arrived at the banquet hall. He parked his vehicle in a space by the south wall and walked into the building. As he passed by Bakhtaryani's table on his way to greet the host, Mohamad and Bakhtaryani spoke briefly in a language other than English. Bakhtaryani then told McDermott that he had been waiting to see Mohamad and was going to speak to him.

The Knife

[26] Bakhtaryani stood up at his table. He picked up a steak knife and put it in his back pocket, then grabbed his coat.

The Departure

[27] Setting out for the exit, Mohand Mohamad passed by Bakhtaryani, who asked McDermott to go outside with him. McDermott told Bakhtaryani to stop it. McDermott and another guest named Dave Reed nevertheless followed Bakhtaryani, who spoke to or gestured to Mohamad on his way out. Mohamad, Bakhtaryani, and McDermott left the building by the same doors within seconds of one another.

The Shooting

[28] Bakhtaryani was shot to death south of an entrance to the Paradise Banquet Hall near a parked car. His roommate, Sean McDermott, was not far away. McDermott gave various accounts at different times about what he had or had not seen.

[29] When McDermott turned the corner and walked in a southeasterly direction, he noticed two men further south down the driveway. Bakhtaryani was about 50 feet away with his back towards McDermott. Another person was about 15 feet further south facing towards Bakhtaryani. McDermott testified that he heard the men speaking to one another "in a different language". Bakhtaryani moved aggressively towards the second man. McDermott was unable to see whether Bakhtaryani had a knife in his hand. McDermott believed that the second man was the same man to whom Bakhtaryani had spoken before leaving the banquet hall.

[30] Sean McDermott was unsure about the number of shots he heard fired. There were three, four, or maybe more. Bakhtaryani fell to the ground. The other man fled towards the south parking lot. McDermott took out his cellphone to call 911, but when he saw the headlights of a vehicle coming towards him, he hid. He said he may have heard more shots at that time.

[31] Dave Reed, who had left the hall with McDermott following Bakhtaryani, testified that he had heard three or four shots, but could not see anything because of the lighting in the area.

[32] A man and his girlfriend were plowing snow in the south parking lot of the banquet hall when the shooting occurred. They heard a bang, then one or two seconds later, two more bangs.

[33] Several of the relevant events were recorded on security video from the cameras installed inside and outside the banquet hall. The videos were available for jury use during deliberations.

Movement of the Body

[34] Sean McDermott asked the snow plow operator or his girlfriend to call 911. McDermott returned to Bakhtaryani's body. A few feet away from the body, he saw a cellphone and a knife. He picked up the knife and the phone and began to drag his roommate's body back towards the banquet hall. Three other men helped him carry Bakhtaryani back to the banquet hall foyer. At trial, McDermott thought he dropped the knife on the way back to the banquet hall.

The Removal of the Knife

[35] The men carrying Bakhtaryani's body put it on a table in the foyer near a fountain. Reed removed a knife from Bakhtaryani's pocket or from the table under the body and threw it in the fountain.

The Findings at the Scene

[36] Investigators found bloodstains on the ground between two parked cars in the laneway around the southwestern corner of the building. In front of the Queen Anne Room, they found a bloodstain and a stainless steel steak knife on the pavement. Near the parked vehicles, police located four .45 calibre shell casings. All had been fired from the same gun. The weapon was never recovered.

The Cause of Death

[37] Arash Bakhtaryani suffered four gunshot wounds. Bullets entered his left and right chest, as well as his right rear ribcage and the front of his right thigh. The examining pathologist, Dr. Michael Pollanen, could not determine the sequence of the shots or the position of the victim when the shots were fired. While the Crown argued that the autopsy results showed that Bakhtaryani was lying in his back when the thigh wound was inflicted, Dr. Pollanen testified that the results were also consistent with the gunshot wound being inflicted when Bakhtaryani was upright with his knee parallel to the ground. He also testified that none of the wounds were immediately fatal and the victim could have continued to move after he had been shot.

The Post-Offence Conduct

[38] Mohand Mohamad fled from the parking lot of the Paradise Banquet Hall immediately after the shooting. He and his girlfriend checked into a downtown Toronto hotel about three hours later. He later drove to Ottawa with his girlfriend. He was arrested there about one month later. Police found passport photos taken shortly before his arrest, but no passport application. On arrest, Mohamad denied any involvement in the killing of the victim. At trial he admitted that denial was false.

[39] While in Ottawa, Mohand Mohamad sold the motor vehicle he had driven the night of the shooting. Nonetheless, forensic investigators found six particles of gunshot residue (GSR) on the front windowsill and four more on the back. According to Dr. David Ruddell, the forensic examiner, the number of particles found was "not a lot" in light of the hundreds of thousands of particles dispelled when a gun is fired. The examiner said that the GSR evidence was consistent with shots being fired from inside the car, but it was equally consistent with those areas of the car being touched by someone who had already fired the shots.

[40] As he explained in his testimony at trial, Mohand Mohamad went through his car after the shooting, removed his belongings, and wiped down the interior. He put the gun in a garbage bag and disposed of it in a dumpster.

Mohand Mohamad's Version of the Events

[41] Mohamad testified that Bakhtaryani accused him of knowing who was responsible for the 2007 robbery of Amiri, but Mohamad denied it. Later, Mohamad heard that Bakhtaryani wanted to "fuck him up".

[42] On the night of the shooting, Mohamad planned to buy 10 pounds of marijuana from another dealer. The sale was to take place in the downtown area. The purchase price was $27,000. Mohamad did not know the other dealer, so he took along his .45 calibre handgun. The dealer was unavailable for an hour, so Mohamad drove to the stag party at Paradise Banquet Hall.

[43] As he entered the banquet hall, Mohand Mohamad saw Bakhtaryani sitting at a table with some bikers. Bakhtaryani asked in English, "Where the fuck you been all these years?" Mohamad continued on his way to congratulate the host, then headed towards the foyer. Bakhtaryani said, "Yo!" as two others got up from his table. Bakhtaryani then gestured for Mohamad to go to him. Mohamad exited through the doors. He jogged to the southwestern corner of the building, but Bakhtaryani continued to follow him, speaking aggressively.

[44] In pursuit, Bakhtaryani shouted forcefully, "Yo, Mo!" As he turned the corner into Mohamad's view, Bakhtaryani yelled, "Where the fuck you going? You don't fucking hear me calling you?" Mohamad then told Bakhtaryani to calm down. Bakhtaryani continued his advance and added, "What, you think you can hide forever, pussy? I've been waiting to fuck you up." Bakhtaryani seemed to be hiding something in his right hand flush to his side. McDermott rounded the corner. He yelled to Bakhtaryani. Bakhtaryani turned and responded to McDermott, "Yo, I got this."

[45] When Mohand Mohamad saw that Bakhtaryani had a knife in his hand, he thought his life was in danger. He backed away. He racked his gun. He said "Stop". He fired two shots but Bakhtaryani continued to advance. Mohamad fired two more shots. Bakhtaryani spun and fell to the ground, landing on his back.

[46] After the shooting, Mohand Mohamad ran to his car. He put the gun on the front seat, then moved it to the console. He saw Bakhtaryani on the ground near the parked car. He did not stop. He did not fire any more shots.

The Sharp-Edge Weapons Evidence

[47] Steven Summerville, a former police officer, was qualified as an expert in several areas. Use of force. Risk assessment. Self-defence. Sharp edge weapons defence. And the palming of weapons. He described experiments designed to estimate reaction time to sharp-edged weapons. The most realistic distance for officers to be able to timely respond was found to be at least 21 feet. That distance allowed officers to recognize the threat, successfully engage their firearm and discharge at least two rounds to stop the advance of the threat towards them. Summerville testified that an attacker walking aggressively in low lighting at a distance of 22 feet poses a potentially lethal risk to the person who is pursued. Lethal force would be the appropriate response, not running away or firing a warning shot. It is almost impossible to protect oneself from an attack from behind.

The Positions of the Parties at Trial

[48] At trial, the Crown contended that Mohand Mohamad lured Arash Bakhtaryani outside, where he lay in wait for him around the corner of the building in the dark. There, he shot Bakhtaryani once, then twice more after Bakhtaryani had fallen to the ground. As he drove away, Mohamad fired a fourth shot as the victim lay on the ground.

[49] The Crown argued that Mohamad's post-offence conduct belied any suggestion that his conduct in shooting Bakhtaryani was in lawful self-defence. The Crown also argued that the GSR in the motor vehicle confirmed that the final shot was fired from that vehicle. This also confirmed the planned and deliberate nature of the killing.

[50] Defence counsel invited the jury to find Mohand Mohamad not guilty, relying on a theory of self-defence. As the video showed and other evidence confirmed, Bakhtaryani was armed with at least one knife. He advanced towards Mohamad, knife in hand. Mohamad responded as anyone in similar circumstances would have.

[51] Defence counsel urged the jury to reject the evidence of Sean McDermott as that of a thoroughly unreliable witness whose testimony was not confirmed in any material way. The GSR residue evidence was equivocal, equally consistent with Mohamad's version of the events as with the Crown's theory. In light of Mohamad's criminal record and his use of an unlicensed handgun, his lies to the police are not necessarily indicative of his guilt on the murder charge.

The Grounds of Appeal

[52] On the appeal from conviction, the appellant advances five grounds of appeal. He says that the trial judge erred:

i. in admitting, under the principled exception to the hearsay rule, both Sean McDermott's preliminary inquiry testimony and his B (K.G.) statement;

ii. in misapprehending confirmatory evidence for the testimony of Sean McDermott;

iii. in permitting the trial Crown to suggest in cross-examination of the appellant and in his closing address to the jury that the appellant had tailored his evidence to explain away the case for the Crown;

iv. in instructing the jury on self-defence under the current provisions of s. 34 of the Criminal Code rather than in accordance with the provisions in force at the time the deceased was killed; and

v. in responding to a jury request for a read-back of Sean McDermott's B (K.G.) statement without including the cross-examination of McDermott at the preliminary inquiry or trial.

[53] On the appeal from sentence, the appellant contends that the trial judge erred in principle by relying on an aggravating factor unsupported by the evidence as a basis upon which to impose an enhanced period of parole ineligibility.

The Appeal From Conviction

Ground #1: The Prior Statement and Evidence of Sean McDermott

[54] This ground of appeal has to do with the trial judge's decision to admit, under the principled exception to the hearsay rule, the videotaped B (K.G.) statement of Sean McDermott, as well as the evidence McDermott gave at the appellant's preliminary inquiry. Neither the statement nor a transcript of McDermott's preliminary inquiry testimony was filed as an exhibit at trial, and thus neither was included in the exhibits sent to the jury room for the jury to review during their deliberations.

[55] Sean McDermott was called as a witness by the Crown at trial. As the only witness, apart from the principals, who was in a position to see the fatal altercation in the laneway, McDermott's testimony occupied centre stage in any purported demonstration of guilt. His lack of enthusiasm for his role was palpable.

[56] Several factors persuaded the trial judge to give a Vetrovec caution in connection with the testimony of Sean McDermott. The close connection between McDermott and the deceased. McDermott's prior criminal record. His attitude toward the court process. The inconsistencies in his statements.

[57] To appreciate the argument advanced in support of this ground of appeal, it is helpful to review briefly the circumstances in which Sean McDermott spoke to investigators and gave evidence at the appellant's preliminary inquiry and trial.

The Early Police Statements

[58] Within hours of the shooting, Sean McDermott was interviewed twice by investigators. During each interview Sean McDermott told police that he heard gunshots while he was outside the foyer of the banquet hall smoking a cigarette. He went around the corner of the banquet hall. He found the deceased on the ground. He claimed not to know where the deceased lived or whether the deceased had a roommate. The reality was quite different. Bakhtaryani and McDermott were roommates.

[59] From the outset, Sean McDermott made it clear that he wanted nothing to do with the police investigation into the deceased's death. He insisted that the police could not hold him. He did not want to be bothered.

The Video Statement

[60] About eight and one-half hours after the second interview ended, police interviewed Sean McDermott for a third time. The interview was videotaped and later transcribed.

[61] As the videotaped interview began, the investigating officer, who had conducted both previous interviews, emphasized the need for McDermott to tell the truth. The officer pointed out that lying to the police during an investigation was an offence. For his part, McDermott wanted to know what the police knew about the shooting. He mentioned security videos. The officer declined to provide McDermott with any investigative details and said nothing about any video surveillance footage.

[62] Towards the end of this interview, a commissioner administered an oath to McDermott. The officer advised McDermott that an untruthful account could constitute the offences of fabricating evidence, obstructing justice, or mischief. McDermott swore that he had told the officer the truth. He also acknowledged that the police had not provided him anything in return for his statement or threatened him to obtain it.

The Preliminary Inquiry

[63] Sean McDermott was subpoenaed to testify for the Crown at the appellant's preliminary inquiry. McDermott did not appear as required by the subpoena. He was arrested and appeared at the inquiry while in custody.

[64] At the preliminary inquiry, Sean McDermott made it abundantly clear that he did not want to attend court proceedings or testify. On at least a dozen occasions, the Crown was required to refresh McDermott's memory to elicit details about the events leading up to and following the shooting of the deceased.

[65] Despite McDermott's contemptuous attitude towards the court process and his repeated claims of amnesia, he testified and was subject to cross-examination at the inquiry. The only limitations on cross-examination arose from McDermott's intransigence and claimed loss of memory.

The Trial Testimony

[66] McDermott's obduracy continued at trial. Crown counsel frequently refreshed McDermott's memory about various events then successfully applied under s. 9(2) of the Canada Evidence Act to cross-examine McDermott on his prior statement. The principal subjects about which McDermott changed his testimony or claimed amnesia included the following: whether the shooter was the same person whom the deceased had followed out of the banquet hall, the circumstances in which the shooting occurred, and whether McDermott had heard any gunshots fired from the shooter's car as he drove away from the scene.

The Positions of the Parties at Trial

[67] At trial, the Crown contended that the requirements of necessity and reliability had been met in connection with both the B (K.G.) statement and McDermott's testimony at the preliminary inquiry.

[68] On necessity, the Crown submitted that at trial McDermott had recanted his prior descriptions of relevant events, thus holding those versions "hostage" and making it necessary that they be admitted to obtain a full and candid account of relevant events. The reliability requirement had been met in connection with the B. (K.G.) statement because it had been videotaped, made under oath, and accompanied by clear and repeated warnings about the consequences of lying. In addition, McDermott was available for cross-examination at trial. The evidence at the preliminary inquiry was given under oath, in open court, in the presence of the appellant, and subject to cross-examination, as it would be if admitted at trial.

[69] Trial counsel for the appellant took the position that neither the B. (K.G.) statement nor McDermott's preliminary inquiry evidence satisfied the necessity requirement of the principled exception to the hearsay rule. Neither was necessary because McDermott had not actually recanted what he had said earlier in his evidence at trial. He did not hold either earlier version "hostage", and thus the Crown had not established, on a balance of probabilities, that their introduction at trial was necessary to ensure that the jury received a full and candid account of relevant events.

[70] Defence counsel also challenged the reliability of the B. (K.G.) statement on the basis that the administration of the oath and the provision of warnings about the consequences of lying after the statement had been made were inadequate to establish procedural reliability. To get hold of the declarant's conscience, the warnings must be given and the oath administered in advance of the statement, not thereafter. Defence counsel did not contest the threshold reliability of McDermott's preliminary inquiry testimony.

The Ruling of the Trial Judge

[71] The trial judge admitted both McDermott's B. (K.G.) statement and his testimony at the preliminary inquiry under the principled exception to the hearsay rule.

[72] The trial judge characterized McDermott's evidence at trial as an amalgam of recantation and feigned claims of memory loss by a person asserting that he was an eyewitness to the shooting death of his roommate. McDermott displayed an obstructive attitude in the presence of the jury, fostered by a view that it was "unhealthy" to appear cooperative in light of his criminal affiliations. In practical terms, this combination of factors insulated the disclosure of the true events as captured in the B. (K.G.) statement and preliminary inquiry evidence from forensic scrutiny at trial and thus satisfied the necessity requirement.

[73] In connection with the B. (K.G.) statement, the trial judge was satisfied that procedural reliability was established by several factors, including that the statement

i. was videotaped in its entirely;

ii. was taken under oath;

iii. was accompanied by warnings about the penal consequences of lying about relevant events; and

iv. was that of a declarant who was present and subject to cross-examination at trial.

[74] In connection with the testimony of Sean McDermott at the preliminary inquiry, the trial judge similarly reasoned that the combined effect of several factors satisfied the reliability requirement:

i. the evidence was given under oath;

ii. the evidence was given in a public courtroom in the presence of the accused;

iii. the declarant was subject to full cross-examination on his testimony at the preliminary inquiry; and

iv. the declarant was present and available for full cross-examination at trial.

The Arguments on Appeal

[75] As the appellant began his oral submissions on this ground of appeal, he abandoned his written submission that the trial judge's finding of necessity was flawed as a result of a misapprehension of the evidence adduced at trial. Instead, he advanced two arguments in support of this ground of appeal:

i. that the trial judge erred in admitting both the B. (K.G.) statement and McDermott's evidence at the preliminary inquiry, since each was duplicative of the other; and

ii. that the trial judge erred in finding that substantive reliability had been established in connection with the B. (K.G.) statement by corroborating evidence.

[76] In his submissions on the first argument, the appellant begins by pointing out that it was the trial judge who raised this issue with counsel during argument of the Crown's motion to admit the evidence. The fact that trial counsel for the appellant did not make any submissions on the issue, he argues, did not relieve the trial judge of his obligation to decide whether any principle foreclosed the introduction of cumulative hearsay. Despite having raised the issue, the trial judge did not further consider it, let alone decide it, and simply admitted both the statement and the preliminary inquiry evidence.

[77] The appellant says that, for all practical purposes, the B. (K.G.) statement and the preliminary inquiry evidence were duplicates. That they were so is relevant to the necessity requirement of the principled exception to the hearsay rule. Prior decisions of this court have held that such cumulative hearsay should not be received. There is no necessity for further statements that simply repeat the substance of a prior statement. In this case, both versions were lengthy, detailed, and as a result prejudicial to the appellant. This prejudice was enhanced by Crown counsel's reference to the substance of the hearsay evidence in his closing address.

[78] Turning to his second argument, the appellant acknowledges that the threshold reliability requirement may be met on the basis of:

• substantive reliability;

• procedural reliability; or

• some combination of substantive and procedural reliability.

[79] The appellant says that the trial judge's substantive reliability analysis is flawed. This is because the corroborative evidence upon which the trial judge relied to establish substantive reliability does not satisfy the standard laid down in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, a decision rendered after trial proceedings in this case had concluded. For evidence to be corroborative of the hearsay statement, the evidence must show that the only explanation for the hearsay statement is that the declarant was truthful about the statement or that the statement was accurate. Here, the evidence relied upon to establish substantive reliability consisted of expert opinion about potential origins of GSR in the appellant's car. This evidence was at best ambiguous and thus incapable of satisfying the stringent standard set by Bradshaw for corroborative evidence.

[80] The appellant also challenges the adequacy of procedural reliability to satisfy the reliability prerequisite of the principled exception to the hearsay rule. About all that can be said for procedural reliability of the B. (K.G.) statement is that it was videotaped. The delayed administration of the oath was too little, too late. Because it was administered late, the oath got no hold on the conscience of McDermott, if ever an oath could do so. In the result, neither procedural nor substantive reliability was established at trial and thus neither the B. (K.G.) statement nor the preliminary inquiry evidence should have been admitted at trial.

[81] The respondent joins issue with the appellant on both claims of error. In the respondent's view, the B. (K.G.) statement and the preliminary inquiry evidence were each properly admitted under the principled exception to the hearsay rule. And the reception of both did not contravene any principle that excludes cumulative hearsay.

[82] The respondent says that any injunction against cumulative hearsay bars only truly duplicative statements, not the statements at issue here, which contain significant differences. What is more, the defence counsel in this case wanted both the B. (K.G.) statement and the preliminary hearing evidence admitted. This enabled counsel to demonstrate the evolving nature of McDermott's account and the inconsistencies within and among the various versions. Inconsistencies about lighting and visibility. About the distance between the combatants and McDermott. And about the number and sequence of the shots.

[83] The respondent also queries the reach of the exclusionary rule the appellant invokes. It is not some bright line rule which excludes all but one hearsay statement about the same subject-matter. Rather, it is at best an aspect or incident of a cost-benefit analysis, which in each case requires a case-sensitive examination of the circumstances to determine whether the benefit gained by introduction of cumulative hearsay is overborne by its cost to the criminal trial process. Here, the balance favoured admission.

[84] In connection with the assertion that the trial judge's reliability analysis was flawed because of his error in relying on corroborative evidence in assessing substantive reliability, the respondent points out that, like the cumulative hearsay submission, this argument was not raised at trial. There, the contest was over necessity in light of what was said to be a congruity between the trial and earlier versions.

[85] At all events, the respondent continues, the reliability component of the principled exception to the hearsay rule was plainly established at trial. Trial counsel conceded that the evidence given at the preliminary inquiry under oath, in the presence of the appellant and subject to a full opportunity for defence counsel to cross-examine McDermott, satisfied the reliability requirement in connection with a witness who was also present and subject to cross-examination at trial.

[86] The respondent points out that the reliability requirement can be satisfied on the basis of procedural reliability, substantive reliability, or some combination of the two. Even if the trial judge was wrong according to the subsequent authority of Bradshaw in his use of corroborative evidence to assist in establishing substantive reliability, the error is of no consequence. The B. (K.G.) statement satisfied the requirements of procedural reliability. It was videotaped. It was under oath and subject to several warnings about the penal consequences of lying. The officer explained that the oath was not administered at the beginning because of concerns about scaring off an uncooperative McDermott. This was understandable and the timing of the oath did not make a real difference.

[87] When the statement was taken, McDermott clearly thought that the police had a video of the shooting, and that falsehoods would therefore be easily unmasked. In addition, he was available for cross-examination at trial.

The Governing Principles

[88] The principles that control our decision on this issue are those that govern the reception of hearsay under the principled exception. That exception is engaged when the proponent of the evidence establishes, on a balance of probabilities, that the twin and cumulative requirements of necessity and reliability have been satisfied. However, removal of the hearsay rule as a bar to admissibility does not mean that the evidence will be received. For it may be that the application of the general cost-benefit analysis mentioned in R. v. Mohan, [1994] 2 S.C.R. 9, will result in exclusion despite satisfaction of the requirements of the principled exception: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3 ; R. v. Hawkins, [1996] 3 S.C.R. 1043, at para. 85 .

[89] In this case, the hearsay challenges are more focused.

[90] What is involved in the challenge to necessity here is a claim that the necessity requirement cannot be met in respect of a second or subsequent hearsay statement that does not differ in substance from one already received under the principled exception. A claim, in other words, that cumulative hearsay fails to satisfy the necessity requirement.

[91] The reliability controversy fastens primarily upon substantive reliability. More particularly, it concerns the viability of the trial judge's finding of reliability in light of his allegedly improper treatment of certain evidence as corroborative. There is also a challenge to procedural reliability based on the timing of the administration of the oath and warnings about the penal consequences of lying to the police.

[92] These claims of error require consideration of the principles that govern reception of cumulative hearsay statements, as well as those that supervise the interplay between substantive and procedural reliability and the role of corroborative evidence in the analysis of substantive reliability.

[93] I begin with the principles relating to cumulative hearsay.

[94] Previous authority from this court has held that the necessity requirement of the principled exception to the hearsay rule may not be met when a hearsay statement, duplicative of a statement already admitted under the principled exception, is proposed for reception.

[95] In R. v. Rahayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, the trial judge admitted the preliminary inquiry testimony of the complainant who had died before trial. The Crown then tendered a videotaped statement made by the complainant proposing that it be admitted under the principled exception to the hearsay rule. The contents of the videotaped statement were identical in various important points to the preliminary inquiry evidence. Defence counsel consented to the admission of the evidence. The trial judge, satisfied that the requirements of necessity and reliability had been met, admitted the videotaped statement as evidence.

[96] On appeal from conviction, this court held that the requirement of necessity was not established in connection with the videotaped statement. What the complainant had said in her videotaped statement was not necessary since it was already before the court through her preliminary inquiry testimony: Rahayel , at para. 73 . The criterion of necessity would not permit the introduction of evidence which simply repeats statements already admitted. This evidence – the duplicative statement – may have little or no probative value but engender great prejudice: Rahayel , at para. 73 . See also, R. v. Meaney (1996), 111 C.C.C (3d) 55 (Nfld. C.A.), at p. 74; R. v. C. (R.) (2005), 77 O.R. (3d) 364 (C.A.), at para. 20 . The Rahayel court also considered that the introduction of the videotaped statement offended the rule prohibiting the introduction of prior consistent statements, absent an applicable exception: Rahayel , at para. 80 .

[97] On the other hand, different circumstances have resulted in the reception of multiple statements from a hearsay declarant, at least where it has been necessary to do so to obtain a full account from that declarant: see, for example, R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at paras. 179-180 ; R. v. Assoun, 2006 NSCA 47, 244 N.S.R. (2d) 96, at paras. 76-77 ; R. v. MacDonald, 2000 NSCA 60, 184 N.S.R. (2d) 1, at paras. 84-85 .

[98] Next, proof of reliability.

[99] A party proposing the reception of hearsay in accordance with the principled exception may establish the reliability prerequisite by different means. Procedural reliability. Substantive reliability. These mechanisms or approaches to proof of reliability are not mutually exclusive but work in tandem: Bradshaw, at para. 32 ; R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at para. 52 .

[100] Procedural reliability is established when there are adequate substitutes for testing the evidence tendered for admission given that the declarant has not provided that evidence in court, under oath, in the presence of the trier of fact and under the scrutiny of contemporaneous cross-examination. These substitutes for traditional safeguards, such as video recording the statement, the presence of an oath, and a warning about the consequences of lying must provide a satisfactory basis for the trier of fact to rationally evaluate the truthfulness and accuracy of the hearsay statement. That said, some form of cross-examination of the declarant is usually required, whether at a preliminary inquiry or at trial: Bradshaw, at para. 28 ; Khelawon, at paras. 63 and 66 ; Hawkins, at para. 75 ; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 92 and 95 .

[101] Substantive reliability is established by showing that the statement proposed for admission is inherently trustworthy. To determine inherent trustworthiness, a court can consider the circumstances in which the statement was made, as well as any evidence that corroborates or conflicts with the statement: Bradshaw, at para. 30 ; Khelawon, at paras. 4, 62 and 94-100 .

[102] The standard for substantive reliability is high. Although a trial judge need not be satisfied about reliability to an absolute certainty, the judge must be satisfied that the statement is sufficiently reliable that contemporaneous cross-examination would add little, if anything, to the process: Bradshaw, at para. 31 ; Khelawon, at para. 49 .

[103] In evaluating substantive reliability, a trial judge can only rely on corroborative evidence if that evidence, considered as a whole and in the circumstances of the case, shows that the only likely explanation for the hearsay statement is the declarant's truthfulness about or the accuracy of material aspects of the statement: Bradshaw, at para. 44 .

[104] Corroborative evidence must relate to the truthfulness or accuracy of material aspects of the declarant's hearsay statement. And at the stage of threshold reliability, corroborative evidence must work in conjunction with the circumstances in which the statement was made to overcome the specific hearsay dangers raised by the tendered statement: Bradshaw, at paras. 45 and 47 .

The Principles Applied

[105] As I will explain, I would not give effect to either aspect of this ground of appeal.

[106] At trial, the appellant's principal, if not exclusive, challenge to the admissibility of the B. (K.G.) statement and preliminary inquiry evidence of McDermott focused on the necessity requirement. Neither the B. (K.G.) statement nor the preliminary inquiry evidence was necessary, he maintained, because McDermott had not recanted either in giving evidence before the jury. The appellant did not contest threshold reliability in respect of either the B. (K.G.) statement or the preliminary inquiry evidence.

[107] In this court, apart from the argument that necessity cannot be established for duplicative hearsay statements, the appellant has abandoned his challenge to the trial judge's finding that the necessity prerequisite had been established. In the absence of any such challenge, I will proceed on the basis that, considered individually, necessity has been established.

[108] Before turning to the cumulative hearsay argument, I will consider whether the statements at issue satisfied the requirement of threshold reliability.

[109] As a general rule, testimony given at a preliminary inquiry will usually satisfy the threshold reliability prerequisite of the principled exception to the hearsay rule: Hawkins, at paras. 76-77 . McDermott's evidence was given under oath, in the presence of the appellant. McDermott was subject to cross-examination by defence counsel. The inquiry involved the same issues and the same parties. Although the trier of fact at trial was not present to observe proceedings at the preliminary inquiry, it was present when McDermott testified at trial and witnessed his cross-examination on his preliminary inquiry testimony.

[110] There is no reason to depart from the general rule in this case. McDermott's preliminary inquiry evidence satisfied the threshold reliability prerequisite of the principled exception to the hearsay rule.

[111] Turning to the issue of threshold reliability in connection with the B. (K.G.) statement, it is helpful to begin by recalling the basis upon which the trial judge found threshold reliability established. In his reasons for admitting the evidence, reported at R. v. Mohamad, 2014 ONSC 1350, the trial judge noted:

[16] Turning to the reliability component, the following procedural circumstances all support admission of the "K.G.B." statement:

• it was videotaped;

• it was confirmed by oath;

• Mr. McDermott was advised of the penal consequences that may flow from providing false information; and

• the availability of Mr. McDermott for cross-examination at trial.

[112] It was only after he had made these core findings that the trial judge mentioned "an additional substantive component" in the following terms:

[17] In addition to these factors, I agree with the Crown that there is an additional substantive component which supports the reliability of this statement. This is the expectation by Mr. McDermott that the entire episode had been captured by the surveillance cameras. At the time he was interviewed on January 23, 2011, it is clear to me that he anticipated that everything he reported to Detective Reid would be confirmed when the police had an opportunity to review the video recordings. In my view, there was a significant motive for Mr. McDermott to be truthful.

[18] Finally, there is forensic evidence of gunshot residue around the front passenger [window] of the vehicle used by the accused on the night in question that could confirm Mr. McDermott's KGB statement of the "coup de grâce" administered as the shooter left the premises. [Citation omitted.]

[113] Several reasons persuade me that the appellant's claim of error in relation to the trial judge's reliance on this corroborative evidence fails.

[114] First, as a matter of general principle, a proponent who seeks to introduce relevant and material evidence may rely on alternative bases to establish its admissibility. It is enough for the proponent to satisfy the requirements of one alternative, even if the requirements of the other alternative cannot be satisfied. For example, the testimony of a witness at a preliminary inquiry may not satisfy the statutory requirements of s. 715 of the Criminal Code , but may nevertheless be substantively admissible at an ensuing trial under the principled exception to the hearsay rule: Hawkins, at para. 82 . Such evidence would be admitted.

[115] Second, under the principled exception to the hearsay rule, a proponent may rely on procedural reliability, substantive reliability, or some combination of each to satisfy the reliability prerequisite. The alternatives are not mutually exclusive. Where the elements of one have been established on a balance of probabilities, it is no answer for an opponent to contend that the evidence does not satisfy the other. Procedural reliability and substantive reliability afford two routes to the same destination – threshold reliability. They are equivalents in the quest to establish threshold reliability.

[116] Third, on my reading of the reasons of the trial judge for finding the reliability requirement satisfied for the B. (K.G.) statement, he grounded his ruling on procedural, not substantive reliability. The statement was videotaped and confirmed by oath. McDermott was advised of the penal consequences of providing false information. And McDermott was available for cross-examination at trial.

[117] The appellant's complaint that the delayed administration of the oath and recitation of the warnings about the penal consequences of falsehoods do not satisfy the oath component of procedural reliability is unavailing. While it is usual to administer the oath and deliver the warnings in advance of providing the statement, the interview was nonetheless under oath and accompanied by warnings. It is also worthy of reminder that the most important factor supporting the admissibility of a prior statement of a non-accused witness for the truth of its contents is the availability of that witness for cross-examination at trial: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 35 ; Couture, at para. 95 .

[118] Further, even assuming that the trial judge mishandled the GSR evidence by treating it as corroborative of the B. (K.G.) statement, its use did not mar or impair his core findings on the procedural reliability analysis. Corroborative or conflicting evidence is usually associated with a substantive reliability analysis because it sheds light on the circumstances in which the statement was made. But substantial reliability is not the basis upon which the B. (K.G.) statement was admitted at trial.

[119] Finally, this ground was not advanced by trial counsel as a basis upon which to exclude the B. (K.G.) statement under the principled exception. Indeed, trial counsel appears to have taken no issue with the proof of the reliability component.

[120] Nor am I persuaded that what I have characterized as the "cumulative hearsay" claim can succeed in the circumstances of this case.

[121] This argument was not raised at trial. But there is more to it than a simple failure to advance the argument at trial. On more than one occasion during the course of submissions on the admissibility issue, defence counsel suggested that both the B. (K.G.) statement and preliminary inquiry evidence should be admitted. This permitted defence counsel to argue to the jury, as he did, that the version of relevant events about which McDermott testified was like a chameleon. Ever-changing, according to the audience. It made McDermott an incredible witness. A purveyor of unreliable testimony.

[122] Further, when the trial judge expressly invited defence counsel to take a position about whether the necessity requirement could be satisfied where an additional statement repeated the contents of one already admitted, the defence counsel (not counsel on appeal) never did respond to the trial judge's query.

[123] Third, when the various precedents are tolled, it is difficult to tease out any bright line rule that enjoins all cumulative hearsay. The principled approach mandates a case-sensitive inquiry to determine whether the prerequisites of necessity and reliability have been established in the case at hand. A more nuanced approach, as opposed to a per se rule, is therefore preferable.

[124] In this case, the B. (K.G.) statement and the preliminary inquiry evidence had much in common. But as the trial judge observed, they are not replicas. And sometimes, as here, the defence sees value in an exposition of the statement history, for example, to demonstrate reliability concerns with the evidence of a tainted witness.

[125] As I have said, I would not give effect to this ground of appeal.

Ground #2: The Confirmatory Evidence

[126] This ground of appeal targets one aspect of the trial judge's Vetrovec caution on the evidence of Sean McDermott. The appellant does not complain about the core elements of the instruction:

i. the identification of McDermott as a Vetrovec witness;

ii. the characteristics of McDermott rendering his evidence subject to the caution;

iii. the language of the caution; or

iv. the desirability of confirmatory evidence.

[127] The complaint here fastens on two items of evidence the trial judge left to the jury as potentially confirmatory of the testimony of Sean McDermott.

[128] To properly appreciate and evaluate this ground of appeal, it is helpful to recall the positions taken by counsel at trial on this issue, as well as the trial judge's final instructions about it.

The Pre-Charge Discussions

[129] It was uncontested at trial that the testimony of Sean McDermott warranted a Vetrovec caution. During discussions about what should be said on this issue, the trial judge invited submissions from counsel on his obligation to provide the jury with illustrations of potentially confirmatory evidence.

[130] The principal submissions from counsel on both sides concerned the confirmatory potential of the evidence of Dr. Pollanen, the forensic pathologist, about the trajectory of the shots and the position of the deceased when those shots were fired, especially the shot that caused the thigh wound. The trial judge suggested that this evidence could support McDermott's claim that Mohamad shot the deceased at least once when he was lying on the ground. The defence objected on the basis that Dr. Pollanen's evidence was inconclusive about the position of the deceased, and that the evidence was consistent with the deceased having been upright.

[131] Defence counsel appears not to have been concerned with the confirmatory potential of the opinion evidence about the origins of GSR residue in the appellant's motor vehicle. He seems to have been equally unconcerned about the evidence of the snow plow operator and his girlfriend who testified concerning the number and sequence of gunshots they heard in the parking lot of the banquet hall.

The Charge to the Jury

[132] In his Vetrovec caution on the evidence of Sean McDermott, the trial judge:

i. identified Sean McDermott as the witness whose testimony was subject to this special instruction;

ii. explained the reasons underlying the caution, including McDermott's criminal record, his inconsistent accounts about relevant events, his close connection to the deceased, and his ongoing criminal activities;

iii. advised the jury that they could rely on the testimony of Sean McDermott even if it was not confirmed by the testimony of another witness or other witnesses;

iv. cautioned the jury that it was dangerous for them to rely on McDermott's evidence unless it was confirmed by the testimony of another witness or other evidence; and

v. explained that to be confirmatory, the evidence should help restore the jury's faith in the relevant parts of Sean McDermott's testimony.

[133] Before offering illustrations of potentially confirmatory evidence, the trial judge emphasized that the warning about acting on the unconfirmed evidence of McDermott applied only to the extent that McDermott's testimony incriminated the appellant. The warning had no application at all to any of McDermott's evidence that was exculpatory of the appellant, such as McDermott's testimony that he found a knife beside the deceased's body, a fact which tended to support the appellant's claim of self-defence.

[134] The trial judge introduced his instructions about potentially confirmatory evidence in this way:

You may find that there is some evidence in this case that confirms or supports some parts of Sean McDermott's evidence. It is for you to say whether this or any evidence confirms or supports his version of the events in question and how that affects whether or how much you will believe of or rely on his evidence in deciding this case. The evidence to which I am about to refer illustrates the kind of evidence that you may find confirms or supports Sean McDermott's evidence. It may help you. It may not. It is for you to say.

[135] The trial judge then illustrated potentially confirmatory evidence with four examples:

i. the expert evidence about the potential origins of GSR residue found inside the appellant's car;

ii. the evidence of the snow plow operator and his girlfriend about the timing, number and sequence of the shots they heard;

iii. the testimony of Dr. Pollanen, especially what he said about the sequence of the shots and the position of the deceased at the time the thigh wound was inflicted; and

iv. the video from the security cameras.

[136] Defence counsel did not object to the charge to the jury.

The Arguments on Appeal

[137] The appellant contends that the trial judge was wrong in leaving the evidence of the snow plow operator and his girlfriend and the opinion testimony of Dr. Pollanen about the deceased's position when the thigh wound was inflicted as potentially confirmatory of the evidence of Sean McDermott. On the other hand, the appellant concedes that the trial judge was right to leave as potential confirmation both the expert evidence of Dr. Ruddell about GSR and the footage from the surveillance cameras at the banquet hall.

[138] The appellant says that the testimony of the snow plow operator and his girlfriend lacked the certainty required for it to have any confirmatory potential. The trial judge suggested that their testimony could support McDermott's claim that there were two volleys of shots, one when Mohamad was on foot and one when he was in the car. However, neither witness heard a shot from the appellant's car after the first volley of shots had been fired. The initial testimony of the snow plow operator supported the appellant's version. In addition to the error in leaving this evidence to the jury as potentially confirmatory of the testimony of McDermott, the trial judge summarized the evidence inaccurately.

[139] As for the expert opinion of Dr. Pollanen, the appellant advances two reasons why it lacked confirmatory potential. Dr. Pollanen's testimony about the position of the deceased when the thigh wound was inflicted was inconclusive. The shots could have been fired and the wound inflicted as the deceased was standing with his knee lifted or falling backwards, rather than lying on his back. And the precise scenario posited by the trial judge as having confirmatory potential – that the shot was fired from above as the deceased lay on the ground – was never put to Dr. Pollanen, and thus formed no part of his testimony.

[140] The respondent's principal position is that the contested items of evidence had confirmatory potential and thus were properly left for the jury to consider. Each item was left in a balanced way by the trial judge, its confirmatory potential fairly put and limited to those parts of McDermott's testimony which incriminated the appellant. The respondent also asks us to bear in mind that trial judges are afforded considerable latitude in the manner in which they approach Vetrovec warnings in general, and their illustration of potentially confirmatory evidence in particular.

[141] Taking first the testimony of the snow plow operator and his girlfriend about the number and sequence of the shots, the respondent says that the trial judge fairly described the evidence and its potential value as confirmatory of McDermott's description. He was careful to lay out the deficiencies in the evidence as well. For instance, the trial judge reminded the jury that neither witness claimed to have heard a fourth shot, although at least four shots had been fired.

[142] The testimony of Dr. Pollanen also had confirmatory potential. McDermott said that the shooter shot the deceased as he lay on the ground. The appellant denied having done so, asserting that the deceased spun and fell on his back. Dr. Pollanen's evidence about an entry wound to the deceased's back tended to confirm McDermott's version, as did Dr. Pollanen's evidence about the angle and position of the deceased's wounds.

[143] As an alternative submission, the respondent argues that any errors in the trial judge's illustrations of potentially confirmatory evidence did not prejudice the appellant. The trial judge properly defined what constitutes confirmatory evidence and made it clear that what he said about it was illustrative, not definitive. Defence counsel did not object to the instructions. The instructions significantly underplayed the confirmatory potential of the video surveillance footage that afforded powerful confirmation of McDermott's version. A more expansive instruction would not have assisted the appellant.

The Governing Principles

[144] The nature of the error claimed here does not compel a widespread trawl of the precedents exploring the borderland of Vetrovec cautions. But something should be said about the nature of confirmatory evidence, the trial judge's obligation to provide illustrations of evidence with confirmatory potential, and the impact of errors in any illustrations provided.

[145] I begin with a return to the origin of the species: R v. Vetrovec, [1982] 1 S.C.R. 811.

[146] Prior to Vetrovec , a rule of law – the accomplice rule – required a trial judge to warn a jury that although they could convict on the uncorroborated evidence of an accomplice, it was dangerous for them to do so. And "corroboration", which the judge was obliged to define, meant evidence independent of the accomplice's testimony which implicated the accused in a material particular. Evidence was potentially corroborative of an accomplice's testimony if it had a specific implicative quality about it, that is to say, if it confirmed in a material particular not only that a crime had been committed, but that it was the accused who had committed it: Vetrovec , at p. 824.

[147] In addition to stating the accomplice rule and defining corroboration, the judge was required to list any and all the evidence adduced at trial which was capable of constituting corroboration. Whether the trial record revealed any evidence of corroborative potential and, if so, what that evidence was became a matter of law: Vetrovec , at pp. 824-825. Since judicial decisions about the corroborative potential of evidence and instructions to the jury on the issue involved questions of law, they were subject to a standard of correctness on appellate review. The near inevitable result of error was a new trial. See e.g. R. v. Riezebos (1975), 26 C.C.C. (2d) 1 (Ont. C.A.).

[148] The preoccupation of courts with the definition of corroboration under the accomplice rule derived from R. v. Baskerville , [1916] 2 K.B. 658 . Baskerville eliminated evidence which strengthened the credibility of the accomplice, the real issue in the case, from the pool of potentially corroborative evidence that could be left for the jury to consider: Vetrovec , at pp. 824-825.

[149] The decision in Vetrovec put paid to the blind and empty formalism of the accomplice rule. In place of the fixed and invariable accomplice rule, the Vetrovec court outlined a practice to be followed when a witness's testimony is central to the Crown's case but may be suspect because the witness is of disreputable character or an accomplice. In such circumstances, common sense dictates that there must be some confirmatory evidence before the trier of fact relies on the testimony: Vetrovec , at p. 831

[150] In its rejection of a special rule for accomplice testimony, the Vetrovec court also rejected the technical Baskerville interpretation of "corroboration". In addition, the court jettisoned the trial judge's obligation to exhaustively list every piece of evidence with corroborative potential. Instead, the jury was entrusted with the task of determining for itself whether any given piece of evidence had that potential. Instead, the court said at pp. 831-2:

There is no magic in the word corroboration, or indeed in any other comparable expression such as confirmation and support. The idea implied in those words may, however, in an appropriate case, be effectively and efficiently transmitted to the mind of the trier of fact. This may entail some illustration from the evidence of the particular case of the type of evidence, documentary or testimonial, which might be drawn upon by the juror in confirmation of the witness' testimony or some important part thereof. I do not wish to be taken as saying that such illustration must be carried to exhaustion. However, there is, in some circumstances, particularly in lengthy trials, the need for helpful direction on the question of sifting the evidence where guilt or innocence might, and probably will turn on the acceptance or rejection, belief or disbelief, of the evidence of one or more witnesses.

[151] Several brief points emerge from the tide of jurisprudence washed ashore from the wake of Vetrovec .

[152] First, the extent to which a trial judge illustrates potentially confirmatory evidence is left largely to the discretion of the presiding judge. Sometimes more illustrations are provided. And other times fewer. Indeed, on some occasions when the record includes a surfeit of potentially confirmatory evidence, defence counsel prefers less rather than more, and perhaps even a diluted Vetrovec caution. And it is the cumulative effect of the potentially confirmatory evidence that jurors are to consider. This cumulative effect may exceed the sum of its individual parts: Vetrovec , at p. 833; R. v. Kler, 2017 ONCA 64, 345 C.C.C (3d) 467, at para. 145 .

[153] Second, to be potentially confirmatory of a Vetrovec witness' inculpatory testimony, independent evidence need not implicate the accused in the commission of the offence. It is sufficient if the evidence is capable of restoring the jury's faith in the relevant aspects of the Vetrovec witness' account: R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 15-16 ; R. v. MacIsaac, 2017 ONCA 172, 347 C.C.C. (3d) 37, at para. 38 , leave to appeal refused, [2017] S.C.C.A. No. 152.

[154] Third, neutral evidence, that is to say evidence that is equally consistent with the truth or falsity of the Vetrovec witness' testimony, lacks confirmatory potential: MacIsaac, at para. 38 ; R. v. McFarlane, 2012 ONCA 355, at para. 14 .

The Principles Applied

[155] As I will briefly explain, the combined effect of several factors persuades me that any error that may have occurred here caused no prejudice to the appellant.

[156] First, this is not a case where each item of evidence presented by the trial judge as potentially confirmatory lacked such potential. The appellant acknowledges that the GSR and video surveillance evidence had confirmatory potential. As well, the video surveillance evidence could easily have been plumbed for its confirmatory potential much more than the passing reference made to it by the trial judge. This would not have helped the appellant.

[157] Second, the evidence about which complaint is made was fairly put by the trial judge. The jury were expressly told that evidence with confirmatory potential was only relevant to assist their evaluation of the incriminatory aspects of McDermott's evidence, not its exculpatory features. And the jurors were told further that whether the evidence helped them in their decision was entirely up to them.

[158] Third, neither counsel who appeared at trial for the appellant objected to this aspect of the charge to the jury. While failure to object is not dispositive, it tends to show that those best positioned to ensure that the appellant's case was fairly put to the jury did not consider that what was said or left unsaid caused the appellant any prejudice.

[159] Fourth, the nature and extent of the illustrations of potentially confirmatory evidence under Vetrovec are largely matters of judicial discretion entitled to deference here. These are not, as under the accomplice rule, determinative of the evidence upon which the jury may rely if they decide that confirmation of the Vetrovec witness' evidence is desirable. The jury was free to consider other evidence as confirmatory. And it follows from the role of potentially confirmatory evidence under Vetrovec that errors in illustrations lack the impact and potential prejudice of errors in listing potentially corroborative evidence under the accomplice rule.

Ground #3: The Tailoring Evidence Ground

[160] This ground of appeal involves a complaint about the trial Crown's cross-examination of the appellant and his references to the answers given in his closing address to the jury. The passages are brief and involve challenges to the appellant's testimony in-chief explaining or responding to some inculpatory features of the case for the Crown.

The Impugned Cross-Examination

[161] In a series of questions, the trial Crown challenged the appellant's explanations for:

i. the gunshot residue in the car he drove to and from the banquet hall;

ii. the fact that he was carrying a loaded handgun when he arrived at the banquet hall;

iii. the accuracy of his shooting despite his claim that he had not fired the gun on any earlier occasion;

iv. the length of time that elapsed between his arrival at the place of the shooting and the killing of the deceased; and

v. the fact that he sold his car after the shooting and prior to his arrest.

The relevant portions of the cross-examination are excerpted in Appendix "A" to these reasons.

[162] The trial Crown also cross-examined the appellant about the absence of video surveillance coverage in the area where the shooting occurred:

Q. And you're also telling this jury that [Bakhtaryani] was crazy, he's around that corner, he's walking quickly at you when you have your .45 pointed at him from 22 feet away?

A. Sure, yes. I don't even have to tell them. They could see the video for itself. That's why I know God's with me on this one because I didn't even know it would've been – it would've been my word that they would have to believe but thank God there's video cameras for that. You could see how – the kind of person he is just from watching the video.

Q. There's no videos around that corner?

A. No, there isn't.

Q. It's only your word?

A. I wish there was. I wish there was.

Q. And these are all lies that you've told the jury to explain away the problems with the evidence, right?

A. It's not like that, sir.

The Closing Address

[163] Early in his closing address to the jury, the trial Crown asked the jury to recall the submissions of defence counsel and the explanations provided by the appellant for various items of evidence introduced in the case for the Crown. After characterizing the defence case as one of two themes, the trial Crown continued:

The first theme is one of innocent explanations. Every time there's a negative piece of evidence against the accused, there is an innocent explanation as to why that piece of evidence exists. The gunshot residue got there when I cleaned out my car. The reason that I didn't immediately get into my car is because it wasn't where I thought it was. I'll get into more specific examples of this as I go on, but for now please remember innocent explanations and how many innocent explanations will be offered to you before you ask yourself how can anyone be this unlucky versus these are just lies. The second theme is anything is possible. Is it possible that you didn't see what you thought you saw and it's possible you didn't hear what you thought you heard. And the last point I want to make before I get into all this evidence is do not believe Mr. Mohamad. He is a liar and he is completely lying about self-defence. He is an accomplished actor who will say anything to convince anyone of his innocence. Just like he swore to God with Officer Goetz and became angry at the suggestion he had anything to do with the shooting. When you look at that video of his statement see how convincing he is. And it's all lies, just like he said in his testimony to you, "I swear to God I didn't mean to kill him. I swear on everything I love I didn't shoot from the car". He was acting for Detective Goetz and he's acting for you when he testified.

The Ruling of the Trial Judge

[164] Defence counsel objected to some aspects of the trial Crown's cross-examination of the appellant. Counsel pointed out that the GSR evidence was equivocal, essentially neutral, not "negative evidence" as the Crown had characterized it. Counsel sought an instruction from the trial judge reminding the jury that counsel's questions were not evidence, and that only the witness' answers were evidence. The trial judge gave this instruction to the jury.

[165] Defence counsel added that the appellant said nothing about GSR residue in his evidence in-chief. The Crown's cross-examination, counsel continued, implied that the appellant had learned about this feature of the Crown's case from disclosure and that the jury should draw an adverse inference that the appellant had concocted an innocent explanation after so learning.

[166] The trial judge did not consider the cross-examination unfair or improper. He reasoned that it was necessary for the Crown to confront the appellant on these issues to comply with the rule in Browne v. Dunn (1894), 6 R. 67 (U.K. H.L.) if the Crown proposed to make any reference to it in his closing address to the jury. In the trial judge's view what occurred was faithful to the principles expressed in R. v. Cavan (1999), 139 C.C.C. (3d) 449 (Ont. C.A.) about the permissible scope of Crown cross-examination.

The Arguments on Appeal

[167] The appellant says that both the cross-examination and the trial Crown's reference to the substance of this evidence in his closing address were improper.

[168] According to the appellant, the cross-examination and closing address were improper in two respects. Each breached the prohibition against the Crown alleging that an accused tailored his evidence to fit the Crown disclosure or the evidence adduced at trial. While this prohibition is subject to limited exceptions, none of those exceptions are at work here. In addition, both were improper because each exacted an evidentiary price or imposed an evidentiary penalty from the exercise of a constitutional right – an accused's right to disclosure and to be present at his or her trial.

[169] The appellant adds that both the cross-examination and the closing address reference taints the jury's view of the ethics of defence counsel, who put a series of exculpatory hypotheticals to the expert witness on GSR residue consistent with the appellant's explanation about how the residue ended up in his vehicle.

[170] The respondent rejects any suggestion of impropriety in either the cross-examination of the appellant or the closing address of the Crown. In any event, the respondent argues, any impropriety that may have occurred did not render the appellant's trial unfair or cause a miscarriage of justice.

[171] The respondent begins with a reminder that the test we should apply in our assessment of this ground of appeal should focus less on the cause – whether the cross-examination or submission was wrong or improper – and more on the effect. The respondent invites us to consider whether singly or in combination what occurred resulted in a miscarriage of justice by rendering the appellant's trial unfair, or by otherwise bringing the administration of justice into disrepute.

[172] The respondent says that it is critical to consider not only the context in which the questions were asked in cross-examination, but also the role of Crown counsel in the adversary process. After all, Crown counsel is an advocate, who is entitled, if not required, to advance the position of the Crown forcefully and effectively.

[173] An assessment of context involves consideration of many factors. The nature of the defence advanced. The extent to which the remarks or cross-examination relate to matters central to the outcome of proceedings. The position of defence counsel, including the fact and nature of any objection raised by counsel. The ameliorating effect of any instructions from the trial judge. The strength of the case for the Crown. And whether the balance of the cross-examination was fair. This assessment must also take into account and accord deference to the trial judge's evaluation of the situation, especially his or her appraisal of the extent of the impact on trial fairness and the nature of the remedy considered appropriate.

[174] The respondent points out that nowhere did the Crown expressly or by necessary implication suggest that the appellant had tailored his evidence as a result of having received disclosure from the Crown prior to trial or of having been present throughout his trial. The Crown was entitled to challenge, and to vigorously challenge, the appellant's story. To suggest that his explanations were implausible. And that they were invented. Indeed, it was necessary for Crown counsel to do so to be compliant with the rule of fairness in Browne v. Dunn if the Crown sought to make anything of it in his closing address.

[175] In the alternative, the respondent argues that any transgressions fell close to the line of propriety, and even taken cumulatively, did not render the appellant's trial unfair or cause a miscarriage of justice.

The Governing Principles

[176] Several basic principles impose limitations on the scope of cross-examination of witnesses in a criminal trial.

[177] First, the law imposes well-established limits on the scope of cross-examination in which Crown counsel is permitted to engage. Some apply to all witnesses. Others apply only where the witness is an accused: R. v. R. (A.J.) (1994), 20 O.R. (3d) 405, at p. 412.

[178] Second, Crown counsel is entitled and sometimes expected to conduct a vigorous cross-examination of an accused: R. (A.J.), at para. 22.

[179] Third, although isolated transgressions of the rules governing cross-examination of an accused by Crown counsel may be of little consequence, repeated improprieties are different. Serial infractions may become abusive and contribute to the danger of a miscarriage of justice: R. (A.J.), at para. 23 .

[180] Fourth, to determine on which side of the line an allegedly improper cross-examination falls, a reviewing court should keep in mind that every improper cross-examination does not require appellate reversal. Each case is different. A function of its own circumstances. And so it is that each case demands a case-specific analysis. What may render one trial unfair may not have the same effect in another case.

[181] The case-specific analysis requires consideration of the alleged improprieties in the context of the entire cross-examination, indeed in the environment of the entire trial. We should consider whether the allegedly improper cross-examination resulted in a jury hearing or seeing evidence that they should not have heard or seen, for example evidence of extrinsic misconduct. We should consider whether the impugned cross-examination was brief or protracted and whether it attracted objection from defence counsel or remained unchallenged. Any ameliorating steps taken by the trial judge, for example curative instructions specific to the impropriety claimed or those of a more general nature, are also important antidotes to any claim of prejudice: R. v. E. (F.E.), 2011 ONCA 783, 108 O.R. (3d) 337, at paras. 76-78 ; R. v. Daly (1992), 57 O.A.C. 70 (C.A.) .

[182] It is well-settled that an accused is not to be cross-examined by the Crown about his receipt of or access to disclosure of the case for the Crown or her presence at trial in order to suggest that his or her evidence has been tailored, although this general rule is not without exception: E. (F.E.), at paras. 71-72 ; R. v. John, 2016 ONCA 615, 133 O.R. (3d) 360, at paras. 60-61 , leave to appeal refused, [2017] S.C.C.A. No. 101; R. v. Jorgge, 2013 ONCA 485, at paras. 12-17 ; R. v. White (1999), 42 O.R. (3d) 760 (C.A.), at pp. 767-68.

[183] Whether cross-examination of an accused about his or her access to and review of Crown disclosure is improper falls to be decided according to the circumstances of each case: Cavan, at para. 41 .

[184] A final point concerns appellate review of decisions concerning the application of the rule in Browne v. Dunn . Appellate courts accord substantial deference to assessments made by trial judges on the application of the rule, especially with respect to the impact of any breach and the choice of remedy. After all, the rule is one of fairness, hence the preferred position of the trial judge to gauge the impact of any breach and the ameliorative response best suited to the case.

The Principles Applied

[185] I would not give effect to this ground of appeal. My reasons are brief.

[186] To begin, at no time did the trial Crown expressly or by necessary implication allege that the appellant tailored his evidence on the basis of his access to or review of Crown disclosure or his presence at trial. It necessarily follows from the absence of any such suggestion in cross-examination and closing argument that the Crown did not attempt in either way to exact an evidentiary toll from the appellant's right to pre-trial silence or disclosure, or his statutory and constitutional right to be present at his trial. As a result, this aspect of the appellant's complaint falls away.

[187] Second, the impugned questions were part of a series directed to show a series of implausibilities in the appellant's account of relevant events beginning with his armed attendance at a stag party and culminating with the shooting death of the deceased. The Crown was entitled to challenge the appellant's account in an effort to negate his claim of self-defence.

[188] Third, the trial judge's measure of the situation is entitled to deference. He was there. We were not. He was better able to take the temperature of the trial than are we at one remove.

[189] Finally, although the trial judge did not consider it essential to a fair trial to give a more specific instruction, he acceded to the only remedial request of defence counsel when he instructed the jury that it was the witness' answers to the questions that constituted the evidence in the case, not the questions of the counsel.

[190] This ground of appeal fails.

Ground #4: The Instructions on Self-Defence

[191] The principal defence advanced at trial, supported by the appellant's testimony and the expert opinion evidence of Steven Summerville about the use of lethal force, was self-defence. The parties agreed that although the killing took place on January 21, 2011, the governing statutory scheme for self-defence were the provisions in s. 34 of the Criminal Code that had come into force on March 11, 2013, about two and one-half months before the appellant's trial ("the current s. 34 ").. At the time of the shooting, different provisions ("the former s. 34 ") were in force.

[192] On June 8, 2015, about two years after the jury rendered its verdict in this case, this court decided that the current s. 34 did not have retrospective effect and thus applied only to offences committed on or after March 11, 2013. In the result, contrary to the position of trial counsel on both sides and the trial judge, the appellant's killing of the deceased could only be justified under the former s. 34 , not under the current s. 34 .

[193] In this court, contrary to the position advanced by his counsel at trial, the appellant says that it was an error to leave self-defence under the current s. 34 , rather than under the former s. 34 , and that the error requires a new trial.

The Pre-Charge Conference

[194] Among the issues canvassed during the pre-charge conference was whether the appellant was under any duty to retreat before he fired the fatal shots, and if so, whether his failure to do so affected the availability of self-defence.

[195] Defence counsel contended that for self-defence purposes, the confrontation between the appellant and the deceased began in the laneway, when the deceased said something that caused the appellant to turn around suddenly. When this occurred, the deceased was armed with a knife and was only 22 feet away from the appellant. At that point, according to the use of force expert, shooting was the only available option, not retreat. Under the current s. 34 , the availability of retreat is a factor for the trier of fact to consider in assessing the reasonableness of an accused's response. The current s. 34 does not eliminate the duty to retreat, nor does the section make the defence unavailable when an accused fails to retreat.

[196] The trial Crown did not contest much of what defence counsel said about retreat and its relevance to self-defence under the current s. 34 . However, the Crown submitted that the appellant's duty to retreat started at the door to the banquet hall, not when the appellant turned around in response to something the deceased said to him in the laneway. It was at the door to the banquet hall where the appellant had to consider his options, among them, retreat.

The Closing Address of the Crown

[197] In his closing address to the jury, the trial Crown focused on the appellant's purpose in shooting the deceased and on the reasonableness of his response to the deceased's conduct. The Crown contended that the purpose of the shooting was not to protect or defend himself as the current s. 34(1) requires, but to lure the deceased outside to a darkened area, there to shoot him with a gun that the appellant had brought with him minutes before. The Crown also invited the jury to find that shooting the deceased was not a reasonable response to unforeseen events but the product of forethought on the appellant's part.

The Charge to the Jury

[198] The trial judge separated out the three constituent elements of the current s. 34(1), which can be summarized as:

• belief;

• purpose; and

• reasonable response.

He converted each into a question for the jury to consider. He emphasized the absence of a burden on the appellant and the imposition of a burden of disproof on the Crown by prefacing each question with the phrase "[h]as the Crown proven beyond a reasonable doubt," followed by a statement of the relevant essential element.

[199] In connection with the third element, which I have summarized as "reasonable response", the trial judge listed the factors set out in current s. 34(2) and continued:

As you can see from this list of factors, in particular, item (ii), an individual may not be entitled to rely on self-defence if there are other means available to respond to the threat. This does not mean that that person is not entitled to stand their ground, that is, they do not have to retreat in the early stages of a confrontation. However, as that confrontation develops and the individual decides to respond to the threat by the use of lethal force, they can only do so if there are no other viable options available to them such as flight or use of a safe haven. Before they can resort to the use of lethal force, they have to consider other available options that do not threaten the life of their assailant. Self-defence is never a licence to indiscriminately kill. On the other hand, an individual cannot weigh to a nicety the exact measure of the defensive action nor to reflect upon the risk of deadly consequences which might result from taking justifiable defensive action. As one giant of American judicial history once said, "It is unreasonable to expect calm reflection in the face of an uplifted knife." There are other definition of self-defence that might apply in other jurisdictions. This is the definition that applies in this country and you are guided by it in your deliberations.

[200] The trial judge then reminded the jury about the positions counsel had advanced in argument on the issue of self-defence before concluding his instructions on the issue by a repetition of the questions reflecting the essential elements of the justification and the findings available to the jury on each question.

The Arguments on Appeal

[201] In this court, the parties have the benefit of the reasons in R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, which was not available to the parties or to the trial judge at the time of trial. They now agree that the trial judge should have instructed the jury on the former s. 34 rather than the current s. 34 . Where the parties differ is on the effect of the error on the reliability of the verdict rendered at trial.

[202] The appellant says that, in this case, leaving the issue of self-defence to be determined in accordance with the current s. 34 was prejudicial to the appellant and compromised the reliability of the verdict rendered at trial. The prejudice arose because the current s. 34, unlike its predecessor, requires the jury to consider not only the availability of other means of response, but also the nature and proportionality of that response to the deceased's threat of force.

[203] Here, the appellant points out, the Crown advanced the availability of other means of response prior to the fatal altercation, such as walking away or leaving the banquet hall. Under the former s. 34(2), the possibility of retreat was only relevant in an assessment of an accused's apprehension or belief after the assault began. The instruction on the current s. 34 left it open to the jury to accept the submission of the Crown that it was unreasonable for the appellant not to pursue other means inside the banquet hall before the deceased pursued the appellant outside the building and before the appellant knew that the deceased was armed. This instruction rendered it unlikely that the jury would find or be left in a reasonable doubt by the possibility that the shooting of the deceased was reasonable in the circumstances.

[204] Under the former s. 34(2), the appellant continues, there was no requirement that an accused's responsive force be proportionate to the deceased's unlawful assault. However, the use of disproportionate force could negate the reasonable response requirement under the current s. 34(1)(c).

[205] The respondent takes the position that the admitted error in leaving the justification of self-defence to be determined in accordance with the wrong statutory provision caused the appellant no substantial wrong and occasioned no miscarriage of justice.

[206] The respondent begins with the observation that the instructions given were precisely what the appellant sought to have the jury assess his claim of self-defence. The defence was grounded on the appellant's own testimony and the expert opinion evidence of Steven Summerville, which focused on the issue of reasonable response as framed by the current s. 34(1)(c) and informed by the factors listed in the current s. 34(2).

[207] The respondent acknowledges that the mere fact that the appellant got the instruction on self-defence that he sought does not erase or diminish the error in giving it. But, the respondent continues, the authorities following Bengy make it clear that the impact of the error is not a constant. Rather, what is required of a reviewing court is a case-specific examination to determine whether the error has compromised the reliability of the verdict and thus resulted in a substantial wrong or a miscarriage of justice. Among other reasons, this analysis is required because the current s. 34 in some respects is more favourable to an accused who raises self-defence, but in others, less favourable than the former s. 34(2).

[208] In this case, the respondent says, the instructions on the current s. 34 were the functional equivalent of the instructions the jury would have received had they been instructed under the former s. 34(2). Nothing turned on the possibility of a retreat or proportionality. The essential issue for the jury was which version of the fatal altercation to accept – that of the appellant or that of Sean McDermott. If the appellant's version was true, no retreat was possible. Lethal force was not only a proportional response to the equivalent threat posed by the deceased, but the only response reasonably available to him.

[208] Under the current and former s. 34, neither retreat nor proportionality bar the availability of self-defence. Each is a factor to determine whether an accused's belief, apprehension or conduct was reasonable. The trial judge made it clear that in the early stages of a confrontation a person need not retreat but must consider alternatives, including escape, when lethal force is used.

[210] In the end, the respondent concludes, the Crown's position did not focus upon either the duty to retreat or the proportionality of the appellant's response. The Crown's position was straightforward: the events described by the appellant simply did not occur. This was not self-defence; rather, a planned and deliberate killing.

The Governing Principles

[211] To determine whether the effect of the instructions given on the current s. 34 caused a substantial wrong or miscarriage of justice to the appellant, it is helpful to consider the essential elements of self-defence under the current and former provisions. In particular, we must consider the relationship between retreat, the availability of alternative means, and the requirement of proportionality on the one hand and the availability of the justification on the other.

The Statutory Provisions

[212] The current s. 34(1) is in these terms:

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;

(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

(c) the act committed is reasonable in the circumstances.

[213] Section 34(1) consists of three elements, which may be briefly described as:

• belief (s. 34(1)(a));

• purpose (s. 34(1)(b)); and

• reasonable response (s. 34(1)(c)).

The first two elements involve an accused's state of mind, the third, an accused's conduct.

[214] Section 34(1)(a) requires that an accused have a reasonable belief that force is being used or threatened against him or her or another person. The focus of this element is on the accused's perception, not the actual circumstances. As a matter of fact, there need not be actual force or even a threat of force. However, as a matter of evidence, the existence of actual force or threat of force would assist in satisfying at least the objective component of this essential element.

[215] The belief component in the current s. 34(1)(a) has both objective and subjective elements. An accused who relies on the justification afforded by the current s. 34(1) must actually believe that force is being used or threatened against him or her. And this belief must be reasonable in all the circumstances.

[216] The second element for which s. 34(1)(b) provides – purpose – also has to do with an accused's state of mind. But this element is purely subjective. The responsive act or conduct must be for the purpose of defending or protecting the accused or another person against whom force is used or threatened.

[217] The final element – reasonable response – relates to an accused's conduct, i.e., what he or she does for the purpose of defence or protection. Section 34(1)(c) requires that the accused's conduct be reasonable in all the circumstances.

[218] The determination of the reasonableness of an accused's response is informed by the factors set out in s. 34(2). The catalogue of factors inform but are not dispositive of the reasonable response element of the justification in s. 34(1)(c). Among the factors are:

i. the nature of the original force or threat;

ii. the extent to which the actual or threatened use of force was imminent;

iii. the availability of means other than those used by the accused to respond to the potential use of force; and

iv. the nature and proportionality of the accused's actual response to the actual use or threat of force.

[219] The former s. 34(2) provided:

34. (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

[220] Under the former s. 34(2), self-defence was available to an accused as a justification for killing another person provided the trier of fact had a reasonable doubt about each of its constituent elements. Two of those elements relate to conduct – the unlawful assault of the accused by another and the accused's use of responsive force. The other two elements expressed in ss. 34(2)(a) and (b) have to do with the accused's state of mind – a reasonable apprehension of death or grievous bodily harm from the unlawful assault and a reasonable belief that a responsive force is required for self-preservation.

[221] The essential elements of self-defence under the former s. 34(2) have been summarized as:

i. the existence of an unlawful assault;

ii. a reasonable apprehension of a risk of death or grievous bodily harm; and

iii. a reasonable belief of the impossibility of self-preservation except by killing or grievously injuring the adversary.

See, 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 para. 93 ; R. v. M. (M.A.), [1998] 1 S.C.R. 123, at para. 18 .

[222] A literal reading of the opening words of s. 34(2) – "everyone who is unlawfully assaulted" – would seem to require an actual assault of the accused, without provocation, as a condition precedent to engage the justification. But the authorities have made it clear that the provision tolerates mistakes on the part of the accused about an actual assault. And so it is that the question for the trier of fact on this element is not "Was the accused unlawfully assaulted?" but rather "Did the accused reasonably believe, in the circumstances, that she was being unlawfully assaulted?": Cinous, at para. 107 ; Pétel, at p. 13. This element, like the other elements, has both a subjective and an objective component. The accused's perception constitutes the subjective component. But that perception must be reasonable, hence the objective component: Cinous, at para. 94 .

[223] The inquiry in connection with the final element in the former s. 34(2)(b) focused not on whether the accused's responsive force was actually the only means of self-preservation, but whether the accused believed that this was so, and whether the accused's belief was reasonable: Cinous, at para. 121 . Said in another way, the focus under former s. 34(2)(b) was on the reasonableness of the accused's actual belief, not on the reasonableness of his conduct in killing his adversary: Cinous, at para. 123 . In light of its potential applicability to cases of intentional killing, the former s. 34(2) was intended to cover situations of last resort: Cinous, at para. 124 .

[224] Under the former s. 34(2), the possibility or availability of retreat was not an element of the justification. But it was a relevant factor for the trier of fact to consider on the issues of the accused's reasonable apprehension of death or grievous bodily harm and his reasonable belief in the availability of other means of self-preservation: R. v. Cain, 2011 ONCA 298, 278 C.C.C. (3d) 228, at para. 9 . In addition, the issue of retreat was also relevant in the assessment of any argument by the Crown that the accused had come to settle a score and was not acting in self-defence: Cain, at para. 10 .

[225] The former s. 34(2) contained no requirement that the responsive force used by the accused be proportionate to the original assault or that it not exceed what was necessary, provided the other conditions were met: R. v. Bogue (1976), 13 O.R. (2d) 272 (C.A.) at pp. 276, 280; R. v. Ward (1978), 4 C.R. (3d) 190 (Ont. C.A.), at p. 192.

Reviewing Erroneous Instructions

[226] Something should be said about how we should assess the impact or effect of erroneously leaving an inapplicable statutory provision for the jury to determine whether the appellant's killing of the deceased was justified in self-defence.

[227] With any defence, justification, or excuse advanced in answer to a charge of crime, an accused is not entitled to its consideration by the trier of fact unless the evidence adduced at trial affords an air of reality for that defence, justification, or excuse: Cinous, at paras. 50-52 ; R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 53 . Where there is no air of reality to a defence, justification or excuse, it should not be put to the jury: Cinous, at para. 51 .

[228] In a case such as this, where the error alleged is that the trial judge failed to instruct the jury on the justification of self-defence under the former s. 34(2), the first question is whether the evidence adduced at trial satisfied the air of reality threshold in connection with each requirement, both subjective and objective, of each essential element of that justification.

[229] If the air of reality standard is met, it becomes necessary to conduct a case-specific inquiry to determine whether the instructions provided under the current s. 34 deprived the appellant of a benefit of some element of the defence available to him under the former s. 34(2) or imported some "pro conviction" factors which would not have been applicable under the former s. 34(2): R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141,at para. 74.

[230] This case-specific inquiry should begin by identifying at the outset the essence of the self-defence claim to determine whether the instructions given under the current s. 34 brought home to the jury the key elements of the former s. 34(2) in light of the evidence adduced at trial: Phillips, at para. 75 . See also, R. v. Pintar (1996), 30 O.R. (3d) 483 (C.A.), at p. 494.

[231] In connection with the former s. 34(2), we must keep in mind that all three elements of the justification include not only subjective features, but also objective components: Cinous, at para. 94 . In cases in which the state of an accused's mind is to be determined in whole or in part by circumstantial evidence, an analysis of what a reasonable person would think or do in the same circumstances is a relevant factor ripe for consideration in assessing an accused's state of mind. It follows that it is not wrong for a trier of fact to take into account conclusions about the objective elements in determining the subjective elements: R. v. LaKing (2004), 185 C.C.C. (3d) 524 (Ont. C.A.), at para. 61 .

[232] Reasonableness is inherently incapable of proof by direct evidence. Thus, the testimony of an accused about his or her perceptions does not necessarily constitute evidence reasonably capable of supporting the conclusion that the accused's perception, belief, or apprehension was reasonable in the circumstances: Cinous, at paras. 95-96 .

[233] A final point about the former s. 34(2). The section did not require an accused to rule out courses of action other than killing. What it did require was that the accused believe on reasonable grounds that there was no alternative course of action open to him at that time. The accused must have reasonably thought he was required to kill the deceased in order to preserve himself from death or grievous bodily harm: Cinous, at para. 123 .

The Principles Applied

[234] For reasons that I will develop, I would not give effect to this ground of appeal.

[235] I begin with the obvious: the trial judge erred in instructing the jury to evaluate the appellant's claim that he acted in lawful self-defence in accordance with the current s. 34 of the Criminal Code . The claim should have been determined on the basis of the former s. 34(2) . But as we have seen in the decisions of this court in Grant and in Phillips , our task in connection with this ground of appeal does not end with the mere identification of the error. We must go on, as in other instances of legal error, to assess the impact of that error in the circumstances of this case. Our inquiry is case-specific, not at some level of abstraction removed from the evidence adduced and the positions advanced at trial.

[236] As mentioned, the first question in this analysis is whether the evidence adduced at trial satisfied the air of reality threshold to warrant the submission of the former s. 34(2) to the jury. For if the evidence falls short of that standard, the appellant is not entitled to have his claim of self-defence considered by the jury in accordance with that provision. And if that is so, its omission from the charge would not cause the appellant any substantial wrong or miscarriage of justice. In this case, however, the respondent has not challenged the trial judge's determination on air of reality. We therefore assume that the threshold is met.

[237] Even if the evidence adduced at trial puts the former s. 34(2) in play, it does not necessarily follow that the error of law in leaving the current s. 34 as the basis upon which to assess the claim of self-defence caused the appellant a substantial wrong or miscarriage of justice. Again, what is required is a case-specific inquiry to determine, in this case, on this evidence and on the basis of the positions advanced by counsel at this trial, whether a substantial wrong or miscarriage of justice occurred because the current s. 34 was left rather than the former s. 34(2).

[238] As I understand the appellant's complaint, it fastens upon two aspects of the current s. 34(1) which he says do not apply under the former s. 34(2):the relevance of failure to retreat and the requirement of proportionate force. The appellant argues that the introduction of these considerations, which would not have been in play under former s. 34(2), amounts to a fatal error.

[239] The following factors satisfy me that this ground of appeal is unavailing.

[240] First, the nature of the controversy at trial.

[241] The issue that divided the parties at trial was the truthfulness of the appellant's account about how events actually unfolded in the darkened laneway. This was the core question for the jury to decide. The appellant claimed the deceased pursued him aggressively. When he arrived within feet of the appellant, the deceased brandished a knife. That he was left with no other option than shooting the deceased was supported by the evidence of Steven Summerville.

[242] The Crown alleged that the appellant's claim of self-defence was woven of whole cloth. What happened was that the appellant lured the deceased to a darkened part of the laneway and there shot him to death as he had planned to do. This was no self-defence; rather, a simple execution.

[243] The resolution of this core question did not require any determination of retreat, other available options, or proportionate force. And its resolution against the appellant left those issues behind.

[244] Second, when the trial judge's charge is read as a whole, the failure of the appellant to retreat was not left to the jury as something that disentitled him from relying on self-defence. In other words, the jury was not told that to succeed on the issue of self-defence the appellant was required to raise a reasonable doubt about the possibility of retreat.

[245] Third, a failure to retreat and the availability of other alternatives would still have been left for the jury's consideration under the correct statutory provisions. The availability of other alternatives, such as retreat, are relevant factors for the trier of fact to consider under both the reasonable apprehension and reasonable belief issues in the former s. 34(2). More importantly, under both provisions, the possibility of retreat and the availability of alternative courses of action are simply factors to consider, not prerequisites for the justification.

[246] Fourth, the relevance of excessiveness or disproportionality of the force used. The former s. 34(2), unlike the current s. 34(1)(c), contains no requirement that the defensive or protective conduct be "reasonable in the circumstances". Under the current s. 34(1)(c), the nature and proportionality of the accused's responsive conduct is neither more nor less than a factor, one of many, for the trier of fact to consider in assessing whether what the accused did was "reasonable in the circumstances". But even under the former s. 34(2), disproportionate force was relevant to a determination of the states of mind described in ss. 34(2)(a) and (b).

[247] Fifth, the significance of disproportionality to the self-defence claim at trial. In this case, disproportionality force was not the central focus of the Crown's submission that self-defence failed. The Crown did not take issue with the testimony of the use of force expert, Steven Summerville, that based on the circumstances described by the appellant, deadly force was the only viable response. What the Crown did challenge was the appellant's claim that he acted in self-defence at all, not that self-defence was an unavailable defence because the appellant used disproportionate force.

[248] Further, the authorities make it clear that self-defence is a justification of last resort: Cinous, at para. 124 . It is also clear that each element of the justification for which the former s. 34(2) provided includes not only subjective components, but also objective considerations. Under the former s. 34(2), the jury would have had to accept that the appellant believed on reasonable grounds that his own safety and survival depended on killing the deceased at that moment. While the appellant's testimony provided evidence about the subjective aspects of the former s. 34(2), it provided little if any support for the objective components.

[249] As mentioned, I would reject this ground of appeal.

Ground #5: The Videotape Playback Request

[250] The final ground of appeal against conviction relates to the trial judge's response to a request by the deliberating jury to replay the videotaped interview of Sean McDermott. Some background is essential to an understanding of this ground of appeal and an assessment of its merits.

The Introduction of the Evidence at Trial

[251] As we have seen earlier, the police interviewed Sean McDermott about his knowledge of the shooting death of the deceased. The third interview, conducted on January 23, was recorded on video as well as audio. A transcript was prepared. Evidence of the interview was admitted as part of the case for the Crown under the principled exception to the hearsay rule. The video of the interview and its transcript were filed as lettered exhibits, but assigned no exhibit number. Neither was sent to the jury room for the jury's use during their deliberations.

The Jury Instruction

[252] In his charge, the trial judge instructed the jury that the evidence upon which they could rely included the testimony of witnesses and anything filed as an exhibit, which they could review as they saw fit in their jury room. The judge explained how the jury could use prior out-of-court statements of Sean McDermott in reaching their verdict. Among those out-of-court statements, the trial judge included the recorded interview of Sean McDermott on January 23, 2011, about which he gave more specific directions.

[253] Among other instructions, the trial judge included in his charge a direction about the jury's ability to ask questions during their deliberations and the procedure the jury should follow when doing so.

The Jury Question

[254] During their deliberations, the jury asked this question:

The jury would like to see the video of police interview of Sean McDermott (Exhibit E1-Video). In particular his statements on shooting once he is around the corner.

The Positions of the Parties

[255] The trial judge solicited submissions from counsel about how best to respond to the jury's question. His initial concern was whether the entire video should be played or whether, as the jury asked, they should only see and hear the portion recounting events after the parties had gone "around the corner".

[256] The trial Crown suggested that the entire interview should be played. Defence counsel favoured playing only those portions recounting events after the parties rounded the corner of the banquet hall. He also asked that the playback be "balanced" by reading to the jury the cross-examination of McDermott on his statement at the preliminary inquiry. Later, defence counsel expanded his request to include McDermott's cross-examination at trial. The Crown then asked the trial judge to read the examination-in-chief of McDermott at the preliminary inquiry if he acceded to the defence request.

The Decision of the Trial Judge

[257] The trial judge decided that the jury should see and hear the entire interview of Sean McDermott. He declined to accede to the defence request about adding the cross-examinations because he did not consider that doing so was responsive to the jury's question. The judge also expressed concern that if he permitted references to the cross-examinations of McDermott, achieving proper "balance" would also require references to the respective examinations-in-chief.

[258] When the McDermott interview was played for the jury in open court, the jury was also supplied with the transcript to help follow along with what was said on the video. The trial judge instructed the jury on proper use of the transcript. He also reinstructed the jury on how they could use the interview as evidence and mentioned the inconsistencies between what McDermott said on the video and what he had said at the preliminary inquiry and at trial.

[259] The jury reached a verdict the day following the replay of the video and the trial judge's instructions that accompanied it.

The Arguments on Appeal

[260] The appellant says that the trial judge erred in failing to give effect to the defence request. What occurred here is similar to cases where the jury asks to hear a portion of the witness' examination-in-chief. In such a case, as we learned from R. v. Olbey, [1980] 1 S.C.R. 1008, even though the jury makes it clear that they wish to hear no more than what they specifically requested, the trial judge must remind them of any part of the witness' testimony that weakens or qualifies the portion the jury seeks.

[261] In this case, the appellant continues, the very fact of the request demonstrated the importance of this evidence for the jury in its deliberations. Sean McDermott's testimony was subject to a vigorous challenge by the defence at the preliminary hearing and at the trial. The trial judge's failure to incorporate the defence request created a serious risk of undue emphasis on McDermott's statement and serious prejudice to the appellant because of a lack of balance.

[262] The respondent begins with a submission that decisions about how to respond to an in-deliberation jury question involves the exercise of judicial discretion. And discretionary decisions, absent any error of law or of principle or any misapprehension of relevant evidence, are accorded substantial deference on appeal. The respondent argues that the same deference should be accorded for the decision of a very experienced trial judge in the final moments of a lengthy and difficult trial.

[263] In this case, the respondent says, giving effect to the appellant's submissions would not only have been unresponsive to the jury's question, but it would have required a laborious presentation of evidence given at different stages of the process by McDermott, whose testimony kept changing. The approach adopted by the trial judge, especially when coupled with the legal instructions he provided, responded correctly, fairly, and in a timely way to the jury's question.

The Governing Principles

[264] Several basic principles inform the decision on this issue.

[265] First, the availability of exhibits for use by jurors in their deliberations.

[266] As a general rule, anything that has evidentiary value may be used as evidence in a criminal trial. These things, when properly qualified for admission at trial, are assigned an exhibit number and filed as an exhibit. Exhibits are real evidence: R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 109 . And as a general rule, apart from things that may be inherently dangerous or otherwise potentially harmful to jurors, these exhibits are sent to the jury room, along with instructions about their use and evidentiary value.

[267] Exhibits, as real evidence, cannot be cross-examined. Leaving to one side exhibits which may form part of a formal admission under s. 655 of the Criminal Code , exhibits are introduced through the testimony of witnesses. Videotaped statements received under s. 715.1 of the Criminal Code are no exception. And witnesses can be cross-examined. This cross-examination might seek to diminish or qualify the probative value of the exhibit the witness has produced. Yet, only the exhibit, not the qualifying cross-examination, goes to the jury room: Taylor, at paras. 110-112 .

[268] Courts have recognized that trial judges have a discretion to determine whether things filed as exhibits should accompany the jury to the jury room during their deliberations. The guiding principle is one of trial fairness. The exercise of this discretion attracts appellate deference. Deference also applies to a review of any jury instructions on the handling of the evidence: R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 78 .

[269] Second, the general principles governing responses to in-deliberation jury instructions. It is well-established that any question posed by a deliberating jury must be considered to be of significance. The answer provided must be correct, comprehensive, timely, accurate, and complete: R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 528 The answers given are extremely important and carry an influence which far exceeds the instructions given in the main charge: S. (W.D.), at pp. 530-1; R. v. Naglik, [1993] 3 S.C.R. 122, at p. 139.

[270] Third, the principles applicable to in-deliberation questions seeking help about evidence.

[271] As the trier of fact, the jury makes all factual determinations on the basis of the whole of the evidence admitted at trial and reasonable inferences drawn from that evidence. Sometimes, during deliberations, the jury requires a refresher about some aspect or feature of the evidence adduced at trial. Faithful to the instructions of the trial judge, the jury puts their request for help in a written question for the judge to answer. The question may seek help about the evidence on a particular issue, the testimony of a particular witness, the testimony of a particular witness on a specific issue, or some combination.

[272] An important decision for judges to keep in mind when asked a question by a deliberating jury about some aspect of the evidence adduced at trial is R v. Olbey, [1980] 1 S.C.R. 1008.

[273] In Olbey , the jury asked to rehear the salient points of the evidence of the appellant and another witness about Olbey's actions after a certain time. They indicated that they wanted to hear all of the witness' evidence. After some of the examination-in-chief had been read back, the jury foreperson indicated that the jury did not wish to hear any more evidence read back. The rereading stopped.

[274] On appeal, Olbey contended that the trial judge erred in allowing the jury to hear only part of the evidence requested without any repetition of the evidence adduced in cross-examination or other qualifying evidence. If that had happened, the argument continued, the evidence would have been put in its proper relation to the whole of the case and not isolated or accorded more emphasis than it should have received: Olbey , at pp. 1027-1028.

[275] The court accepted as a general principle that where a jury requests a read back of a witness's evidence, the trial judge should not permit the jury to hear only a part of that evidence. The jury should also hear those portions of the evidence, whether given during the examination in-chief or cross-examination, which weaken or qualify the part read. And this is so even if, as in Olbey , the jury indicates that it does not wish to hear any more of the witness' evidence: Olbey , at pp. 1027-1028.

[276] Where a trial judge errs in failing to read back all the relevant evidence, an appellate court is required to consider whether the error prejudiced the accused by improperly influencing the jury's verdict, thereby resulting in a substantial wrong or miscarriage of justice: Olbey , at p. 1029.

[277] The Olbey court concluded that what had occurred at trial did not result in a substantial wrong or cause a miscarriage of justice. In reaching this conclusion, the court noted that there was no issue at Olbey's trial that he had killed the deceased. The only matter at issue was the legal nature of that killing, which fell to be determined by what the jury decided on the issues of self-defence and provocation. The witness whose evidence was partially read was not shaken in cross-examination. The jury did not want to hear any further testimony, including that of Olbey himself. The defence position had been fairly put. The court declined to interfere despite the error: Olbey , at pp. 1029-1030.

The Principles Applied

[278] In combination, several factors persuade me that this ground of appeal fails.

[279] First, judicial discretion. That in-deliberation jury questions require timely, correct, comprehensive, accurate and complete response is not open to debate. But, how the response is given is left largely to the discretion of the presiding judge. And that discretion, uncontaminated by errors of law or misapprehensions of fact and falling within a range of reasonable alternatives is entitled to deference on appellate review. The approach taken here was at once efficient and responsive to the jury's question.

[280] The failure to accede to the proposal of defence counsel to "balance" the description of relevant events in McDermott's video statements by reference to portions of his cross-examination at the preliminary inquiry and trial was neither legally wrong nor an unreasonable response.

[281] At bottom, what defence counsel had in mind as "balancing" the evidence was unclear. Sean McDermott's evidence was a work in progress, constantly evolving from the first interviews to the video statement; from the video statement to the preliminary inquiry; from the video statement and preliminary inquiry to the trial; and as the trial played out. The search for "balance" would involve a laborious, time-consuming exercise of finding and reading everything that McDermott said about what he saw around the corner. And there would be no reason to confine the "balancing exercise" to what McDermott had said in cross-examination. The jury was scarcely in need of reminder that the video interview of Sean McDermott on January 23, 2011 was only part of its evidence. His disavowal of it was on full display at trial. The jury was witness to his several days of testimony. Of obfuscation and equivocation. The jury was also aware that McDermott was an unsavoury and very reluctant witness whose version of events evolved over time. The judge had expressly instructed them that it would be dangerous for them to reach a conclusion of guilt on the basis of his testimony absent confirmation by evidence from an independent source. And after the video was replayed for the jury, the trial judge repeated his earlier instructions about how the jury should assess McDermott's evidence, of which the video statement was but a part, including the need for caution in doing so.

[282] Second, the significance of McDermott's evidence for the determination of the pivotal issue at trial. The appellant acknowledged shooting the deceased and causing his death. He said he shot and killed in self-defence. This justification was entirely dependent on the appellant's own testimony, not that of Sean McDermott. It follows that the trial judge's failure to provide the more expansive response to the jury's question as proposed by defence counsel did not prejudice the appellant, compromise his principal defence, or render his trial unfair.

[283] Third, the evidence as a whole. The trial judge explicitly and repeatedly cautioned the jury about the need to consider the evidence as a whole and not to rely on McDermott's statement to the exclusion of the balance of the evidence.

[284] There is no reason to think that the jurors did not adhere to this instruction in their deliberations, especially since they were reminded of it after the statement had been replayed in its entirety.

[285] Further, it is worthy of repetition that the manner in which McDermott's evidence evolved and the instructions given to the jury about how to approach his evidence were prominent features of this trial. The jury was well aware that the video statement was but a part of McDermott's ever-evolving version of events. The failure to specifically rehearse excerpts from his testimony at the preliminary inquiry and trial to make that obvious point did not compromise the fairness of the trial or cause a miscarriage of justice.

[286] I would not give effect to this ground of appeal.

[287] For these reasons, I would dismiss the appeal from conviction.

The Appeal From Sentence

[288] The appellant also seeks a reduction in the 16-year period of parole ineligibility fixed by the trial judge after the jury had found the appellant guilty of second-degree murder. He advances a single ground of appeal, which renders unnecessary any further review of the circumstances surrounding the death of the deceased.

[289] A brief reference to some aspects of the sentencing proceedings is sufficient to place the claim of error in its proper setting.

The Jury Recommendation

[290] In response to the statutory question asked of them by the trial judge, seven jurors made no recommendation about parole ineligibility, three recommended ten years, one recommended 15 years, and one recommended 25 years.

The Positions of the Parties

[291] The trial Crown sought a parole ineligibility period of 18 years on the basis of several aggravating factors:

i. the appellant's criminal record of 21 convictions, including offences of violence, weapons offences, drug offences, and failures to comply with court orders;

ii. the fact that the appellant was on probation and bound by two lifetime weapons prohibitions when he killed the deceased with an illegal handgun;

iii. the appellant's criminal lifestyle, including carrying a gun while trafficking in drugs;

iv. the circumstances of the killing, including shooting the deceased as he lay wounded and helpless on the ground; and

v. some elements of planning.

[292] Defence counsel argued for an order fixing the period of parole ineligibility at the statutory minimum of ten years. Counsel emphasized:

i. the fact that the overwhelming majority of jurors made no recommendation or recommended the ten-year minimum;

ii. the mitigating effect of the conduct of the deceased, who took and maintained the initiative in the confrontation and an aggressive attitude and posture towards the appellant;

iii. the absence of any evidence of planning;

iv. the appellant's acceptance of responsibility for his lifestyle and its consequences;

v. the appellant's expressions of remorse during his trial testimony and allocution before sentence was passed;

vi. the appellant's supportive family; and

vii. the appellant's rehabilitative prospects.

The Reasons for Sentence

[293] In establishing the period of parole ineligibility at 16 years, the trial judge acknowledged that the appellant expressed remorse for his conduct and responded to an armed and persistent aggressor. The killing was intentional, but not planned or deliberate. But the appellant's return to inflict the "coup de grâce" on a mortally wounded and helpless victim lying on the frozen ground, as confirmed by the GSR evidence and video surveillance, was a significantly aggravating factor. So was his later conduct in destroying evidence of his involvement in the killing. The trial judge accepted that the jury had found that the murder was not planned and deliberate.

The Arguments on Appeal

[294] In his brief submissions on this issue, the appellant challenges the sentencing judge's factual finding that the "coup de grâce" occurred. This finding, the appellant says, was unreasonable in light of the evidence adduced at trial and the appellant's acquittal of planned and deliberate first degree murder. Neither alone nor in combination did the eye and ear witness evidence or the expert evidence of the pathologist or the GSR expert support the conclusion that the deceased was shot from the car while he was lying on the ground, mortally wounded. Consideration of this aggravating factor rendered the sentence demonstrably unfit.

[295] The respondent rejects any suggestion that the "coup de grâce" finding was unreasonable or devoid of evidentiary support. Therefore, this conduct was properly considered as an aggravating circumstance. The trial judge was careful to properly confine the influence of his "coup de grâce" finding in his sentencing decision.

[296] The respondent says that even if we were to accept that this finding was unsupported by the evidence or that it was not properly considered as an aggravating factor, the sentence imposed was nonetheless fit in light of the overwhelming aggravating factors and the predominance of the sentencing objectives of denunciation and deterrence. The respondent points out that the appellant was a career criminal, a drug dealer who carried a gun. Thirty-one years old at the time of the offence, the appellant was no callow youth. He had accumulated nearly two dozen convictions. Four offences of violence. And weapons offences. And drug offences. And breaches of court orders. He was on probation and in possession of a loaded illegal handgun in flagrant breach of not one but two lifetime weapons prohibitions. He brought a loaded handgun into a banquet hall. He destroyed evidence to avoid detection. Right or wrong about the "coup de grâce", the sentence was fit.

The Governing Principles

[297] The principles that govern appellate review of sentences imposed at trial are well-settled and in no need of elaboration. Suffice it to say that ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on sentence, an appellate court may not vary a sentence unless it is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11 . Errors in principle, failures to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge's decision that such an error had an impact on the sentence: Lacasse, at para. 44 .

The Principles Applied

[298] As I will explain briefly, I would reject this ground of appeal and not interfere with the period of parole ineligibility fixed by the sentencing judge.

[299] To begin, I am not persuaded that the "coup de grâce" finding made by the trial judge was devoid of evidentiary support. A passage to this effect appears in McDermott's video statement of January 23, 2011 which was admitted as evidence of the truth of its contents in accordance with the principled exception to the hearsay rule. It was confirmed to some extent by the expert evidence about the GSR found a month later on the appellant's car and by the security video recording the movement of his vehicle and the reaction of several observers.

[300] At all events, any error made by the sentencing judge in connection with the influence of the "coup de grâce" evidence on the sentencing decision did not result in the imposition of an unfit sentence. Aggravating factors were numerous. A 31 year-old recidivist. A dedicated career criminal selling drugs as a business. On probation. Bound by two lifetime weapons prohibitions. Unlawfully carrying a loaded handgun. Previously convicted of offences of violence, weapons offences, and drug offences. Oblivious to court orders. Shooting his victim four times, including once in the back.

[301] I would dismiss the appeal from sentence.

Conclusion

[302] I would dismiss the appeals from conviction and sentence.

Released: "GRS" NOV 30 2018

"David Watt J.A."

"I agree. G.R. Strathy C.J.O."

"I agree. G.J. Epstein J.A."

Appendix "A"

Excerpt of the Appellant's Cross-Examination

Q. It seems to me that every piece of negative evidence against you you create some sort of innocent explanation to deal with it. You're saying that you know the GSR, your explanation for the gunshot residue in the car is is that you opened all the doors and searched that car, rear and passenger, so that'll provide an explanation for the gunshot residue, right?

A. That's what happened, sir.

Q. You're also saying about this drug deal and that's why you were carrying the gun, you have an innocent or semi-innocent explanation as to why you're carrying the gun that evening because you can't have the jury think you carry a gun all time, right?

A. I don't carry a gun all the time though.

Q. You're also saying that you've never fired that gun before because to do that would be bad for – for you in front of the jury, right, you don't want them to know you that you've practiced with it, you know how to use it, right?

A. No, if I've fired it I would've said I fired. I don't see what's the point. I've never fired it.

Q. But in a highly volatile situation, while you're panicking and frozen, you manage to draw your gun, rack it, fire four shots from a gun you've never fired before and hit someone four times?

A. Yes, sir, that's what happened.

Q. Also this 10-second delay, the fact that you're around the corner 10 seconds before Arash gets around there's a problem for you. So you have to come up with when you get around there you think your car is somewhere else. You also come up with this fact that you are walking slowly that it's….

A. I'm not walking slowly. I was walking normally.

Q. Well, no, you said it was slippery.

A. Yeah, it was slippery.

Q. You said it was slippery. You had dress shoes on.

A. Yes, I did.

Q. So you're walking slowly. You're not walking normally?

A. I'm not walking slowly. I'm walking – I'm actually walking faster than normal.

Q. Well, you just said this morning.

A. No, no, no.

Q. That the reason that you slow down is because you were wearing dress shoes and it's slippery?

A. Yes.

Q. Now you're saying you were walking normally and you didn't slow down?

A. I was walking normally. I never – I don't think I – if I did say normal – I was walking slowly then I misunderstood your question or I answered it wrong then. I was never walking slowly.

Q. And so you deal with this problem of, you know, being around his corner is is that you've underestimated where your car is, right?

A. Sure.

Q. Even though you've only left it three minutes ago and there's $27,000 in it?

A. The $27,000 – I don't even know why you mention that because at the time my mind is not thinking about my money right now. I'm just trying to get to my car, sir.

Q. You also have this explanation that you planned on selling the car prior to this incident, right, because you don't want the jury….

A. I was with – sorry, I was with Musi a month or so before that – Musafa and he – me and him went downtown in the Honda Accord and he really liked the car and he was like "Is this your car?" And I'm like it's one of my dad's cars that he sells. I'm using it for now. And he – please – said, "Please sell it to me. Please sell it to me. I want this car. I really like this car." And I was, like, "You know what I'm just driving it around for now. I'll – I'll make sure, you know, it gets to you once I'm sick of driving this." Pretty much we have this conversation a month before this incident.