Her Majesty the Queen v. Johnson

[Indexed as: R. v. Johnson]

Ontario Reports

Court of Appeal for Ontario

Watt, Pardu and L.B. Roberts JJ.A.

February 25, 2019

145 O.R. (3d) 453 | 2019 ONCA 145

Case Summary

Criminal law — Defences — Provocation — Crown adducing surveillance video at trial that showed bouncer putting shooter in headlock and taking him to ground before shooting — Accused denying that he was person shown in video — Defence counsel not laying evidentiary foundation for partial defence of provocation but raising defence during pre-charge conference — Trial judge erring in refusing to leave provocation with jury — Events recorded on surveillance video and testimony of bouncer satisfying air of reality threshold for provocation.

Criminal law — Evidence — Expert evidence — Identity of shooter central issue at trial — White spot visible on front of shooter's vest on surveillance video — Crown submitting that white spot was chain and medallion worn by accused — Defence seeking to adduce expert evidence of physicist that white spot was unlikely to be chain and medallion as it did not move between two frames of video — Trial judge not erring in excluding proposed evidence — Evidence failing to satisfy threshold necessity requirement — No special learning or expertise required to determine whether spot moved and within competence of everyday experience of jurors — Evidence also failing at gatekeeper stage of analysis as its potential effect on trier of fact far outweighed its probative value.

Facts

The accused was convicted of second degree murder and attempted murder. After intervening in an attempted robbery, a bar bouncer put a man in a headlock, used an extendable baton to lock the man's hands behind his back, and pulled him to the ground. When the bouncer released him, the man pulled out a gun and fired three shots, missing the bouncer and hitting two bystanders. One died, and the other survived. At trial, the Crown adduced surveillance video that showed the altercation between the shooter and the bouncer. The video was of poor quality and there were some gaps between the two cameras that captured the images, and the cameras captured images intermittently, not continuously. A police officer, who had studied the videos, extensively testified to several characteristics he determined the person had, one of which was that the person was wearing a medallion on a chain. The accused was wearing a medallion when he was arrested. The accused denied that he was the man in the video. The Crown submitted that a white spot that was visible on the front of the shooter's vest was a chain and medallion worn by the accused. The defence sought to adduce the expert evidence of a physicist that the white spot was unlikely to be a chain and medallion because it did not move between two frames of the video. The trial judge excluded the proposed evidence on the bases that it did not meet the necessity threshold and alternatively that it should be excluded as part of the gatekeeping function of a trial judge as the potential prejudicial effect far outweighed the value of the evidence. Despite the fact that defence counsel directed few questions to eyewitnesses to lay an evidentiary foundation for the partial defence of provocation, he raised provocation during the pre-charge conference, arguing that the wrongful act relied on was the bouncer's manhandling of the shooter and that the events recorded on the surveillance video gave the defence an air of reality. The trial judge rejected that argument and declined to leave provocation with the jury. The accused appealed his conviction.

Held

The appeal should be allowed.

The trial judge did not err in excluding the proposed expert evidence. The proposed evidence failed to satisfy the necessity requirement at the threshold stage of the admissibility analysis. The expert's observations of the surveillance videos were fundamental to his opinion. The videos were available to the jury for their review. No special learning, skill, or expertise was required to determine whether the white spot moved or remained stationary between frames. The proposed evidence also failed at the gatekeeping stage of the analysis. Dressed up in scientific language and awash in a sea of mathematical formulae and calculations, its potential effect on the trier of fact far outstripped its probative value.

The trial judge erred in not leaving provocation with the jury. The events recorded on the surveillance video and the testimony of the bouncer satisfied the air of reality threshold. It was open to the jury to infer that the bouncer's conduct — putting the shooter in a headlock, immobilizing his hands and arms and taking him forcefully to the ground — was a wrongful act, and to infer that the bouncer's conduct could cause an ordinary person to lose the power of self-control. It was also open to the jury to infer that the shooter's response to the bouncer's wrongful act was sudden, before the passion aroused by that wrongful act had time to cool. What controlled the trial judge's obligation to submit the partial defence of provocation to the jury was the capacity of the evidence adduced at trial to support the inferences essential to give effect to the defence. The evidence in this case met that standard. It was not for the trial judge to say whether the defence of provocation was likely, somewhat likely, very likely or not at all likely to succeed as a matter of fact.

Judgment

APPEAL by the accused from the convictions entered by Nordheimer J. of the Superior Court of Justice, sitting with a jury, on October 20, 2010.

Mark C. Halfyard and Breana Vandebeek, for appellant.

John Patton, for respondent.

The judgment of the court was delivered by

Reasons for Decision

Introduction

[1] WATT J.A.: — Three gunshots were fired outside Whispers, an after-hours bar. A man just released from the grip of a bouncer fired those shots. The bouncer worked at Whispers.

[2] The shots missed the bouncer, their apparent target. But the shots hit two other people. One man died. The other was wounded, but survived.

[3] A jury was satisfied beyond a reasonable doubt that Peter Johnson was the shooter. The jury found him guilty of second degree murder and attempted murder.¹

[4] Peter Johnson appeals his convictions. He says that the trial judge wrongly excluded some expert evidence tendered by the defence and further erred in refusing to leave the statutory partial defence of provocation to the jury in connection with the charge of second degree murder.

[5] These reasons explain why I would reject the claim of error relating to the exclusion of evidence, but allow the appeal on the basis that provocation ought to have been left with the jury.

The Background Facts

The Robbery

[6] No one who was part of the melee during which the shootings occurred identified the shooter as Peter Johnson, or for that matter, as anybody else. However, it was expressly admitted at trial that the shooter was the person whom the bouncer, Albert Grant, had subdued then released in the parking lot outside Whispers.

[7] Entry to Whispers required payment of a fee or charge. The money was collected near the entrance of the bar and kept in the purse of a cashier.

[8] Shortly before the shootings, two men attended the bar and grabbed the cashier's purse containing the entry fees. A struggle followed. The cashier pursued the assailants into the parking lot outside the bar. She attempted to get her purse back. She went after the robbers for the return of her purse because it contained her identification, cellphone and car keys. The robbers insisted that she go with them.

The Bouncer Intervenes

[9] Albert Grant was working as a bouncer at Whispers. When he heard and saw the cashier struggling with some men over her purse, Grant intervened. He yanked the cashier away from the robbers. Her purse flew open. Money scattered all over. Several patrons in the parking lot began picking up the money.

[10] When Grant saw the men reaching towards their clothes, he yelled, "They have guns." He headed back towards the entrance.

The Altercation

[11] As he approached the entrance to the bar, somebody ran up behind Grant, who turned around, put the man in a headlock and used his extendable baton to lock the man's hands behind his back. Grant then pulled the man down to the ground.

[12] Grant assured the man that he would not harm him and would let him go without waiting for the police. Grant told the man to stop struggling, to co-operate and to go with him. The man kept saying "okay", stopped struggling and began to co-operate as Grant had advised him to do.

The Shooting

[13] As Grant released him, the man pulled out a gun and fired three shots. Grant's face felt numb. His ears were ringing. Grant thought he had been shot.

[14] None of the shots hit Grant. Two shots hit two other men in Grant's vicinity. One died. The other survived.

The Eyewitness Testimony

[15] Neither Albert Grant, nor the cashier nor anybody else present when the shooting occurred identified the shooter.

The Admission

[16] Trial counsel expressly admitted that the man Grant apprehended and later released was the person who fired the three shots which killed one man and wounded another.

The Surveillance System

[17] A surveillance system at Whispers recorded activities taking place both inside and outside the bar. The two cameras outside recorded events intermittently, not continuously. There was also a blind spot between the two cameras.

[18] Police seized the surveillance system. They tracked the movements of the shooter and listed his identifying characteristics from the images captured by the surveillance system.

[19] The images from the surveillance system disclosed several features of the shooter's appearance. The shooter wore what appeared to be an aqua blue long-sleeved, over-sized t-shirt over a white t-shirt that hung below the outer shirt. He wore dark full-length pants and white running shoes with a black dot on the back of each shoe and black markings on the front and back of the soles of the shoes. He had a chain around his neck with a medallion on it.

[20] The shooter had a receding hairline. His hair was braided at the back. There was a darkness under his lip, as if he had a moustache, and what appeared to be a light beard.

The Video Identification

[21] Detective Hank Idsinga spent several hundred hours reviewing the video surveillance from inside and outside Whispers on the date of the shooting. He testified that the shooter had been one of the men involved in the robbery of the cashier. Earlier in the evening this man had been wearing a baseball cap. When Grant put this man in a headlock, an object resembling a hat can be seen on the ground in the immediate area where the confrontation between the man and Grant occurred.

[22] It was the evidence of Det. Idsinga that the only person who fit all the identifying characteristics of the shooter was Peter Johnson.

The DNA Evidence

[23] Police seized the jacket Albert Grant was wearing when he put the shooter in a headlock and immobilized his arm with the extendable baton. Grant had his left arm around the shooter's neck and the shooter had his head against Grant's upper left chest.

[24] In the upper-left quadrant of Grant's jacket, a forensic biologist located five areas of staining, including two encrusted areas. Four of these five areas, including one that was encrusted, contained a DNA profile in which Peter Johnson was the major contributor. The probability of another person being the source of this DNA was one in 5.7 billion.

[25] Albert Grant had frisk-searched Peter Johnson earlier in the evening before the shooting occurred.

The Grounds of Appeal

[26] Peter Johnson (the "appellant") challenges two decisions made by the trial judge. He says that the trial judge was wrong:

(i) in ruling inadmissible the proposed expert opinion evidence of Dr. Jason Harlow about the likelihood that a white spot apparent on a surveillance video was a chain and medallion around the neck of the shooter; and

(ii) in failing to instruct the jury on the statutory partial defence of provocation on the count charging the appellant with second degree murder.

Ground #1: The Expert Opinion Evidence

[27] The critical issue at trial was the identity of the shooter, the man whom Albert Grant subdued in a headlock then released when the man ceased to struggle with Grant. None of the eyewitnesses to the incident identified the appellant or anyone else as the shooter.

[28] To establish that the appellant was the shooter, the Crown relied upon the evidence of Det. Idsinga who, over hundreds of hours, reviewed the surveillance video from inside and outside Whispers and compared a list of identifiers consisting of items of clothing and bodily appearance that matched only the appellant. The identifiers included a long chain and a medallion around the neck of the shooter. On arrest, police seized a long chain and medallion from the appellant who admittedly was at Whispers that evening.

[29] Some additional background is helpful for an understanding of the evidence tendered for admission and the trial judge's reasons for excluding it.

The White Object

[30] At times on the surveillance video and screenshots taken from it, a white object is visible around the shooter's neck. The Crown contended that the object was a medallion attached to a long chain around the shooter's neck, a medallion and chain just like those seized from the appellant on arrest. The defence argued otherwise: the white object was a reflection from the collar of the white t-shirt underneath the outer shirt. It was not a medallion because, despite the struggle with Grant, the object did not appear to move between frames of the video as a medallion like that seized from the appellant would have done.

The Proposed Evidence

[31] In support of its characterization of the white object, the defence proposed to elicit expert opinion evidence from Dr. Jason Harlow, a senior lecturer in physics at the University of Toronto. The trial judge heard the proposed testimony on a voir dire.

[32] Dr. Harlow explained that a large area of his research involved the study of light, including observations on the movement of objects on camera, particularly of objects that may reflect light. He analyzed several video frames to determine whether a white area below the shooter's head could be light reflected from a medallion on a long chain. Dr. Harlow concluded that although it was possible that the white spot apparent in the video was the chain and medallion, it was unlikely to be so.

[33] The analysis Dr. Harlow conducted was grounded entirely on his visual observation that the white spot did not move between two frames of the video 0.133 seconds apart. His opinion was the product of his calculations regarding the speed at which the medallion would travel and the distance it would cover given certain assumptions. In his view, if the white spot were the chain and medallion, then it would have been in motion, as evidenced by its presence around the wearer's neck, rather than near his navel where it would normally be.

[34] Dr. Harlow calculated that if the medallion were jerked upwards as he assumed, then in the 0.133 second space between frames it would have moved 29 centimetres. On the other hand, he acknowledged that if the medallion were moving in any number of other directions, the speed calculations would differ significantly. Dr. Harlow appears to have been unaware of the altercation between the shooter and Grant immediately before the shooting and the possibility that the chain and medallion could have been in any number of different positions as a result of that interaction.

The Ruling of the Trial Judge

[35] The trial judge excluded the proposed evidence. He determined that the testimony of Dr. Harlow failed to satisfy the threshold requirements for the admissibility of expert opinion evidence. Even if he had been satisfied that the proposed evidence met the threshold requirements for admission, the trial judge would have excluded it in the exercise of his gatekeeper function.

[36] In connection with the threshold requirements, the trial judge concluded that the opinion Dr. Harlow proposed to express extended beyond his acknowledged expertise as a physicist. The opinion involved an attempt by Dr. Harlow to transpose calculations based on his measurements of the appellant's face to scenes shown in the video in order to calculate various distances. Yet, these calculations were made without any knowledge about the positioning and operation of the cameras; the distance individuals were away from the cameras; potential distorting effects; the two-dimensional nature of the images; and the lack of clarity in the videos.

[37] In addition, the trial judge was satisfied that the proposed evidence was neither relevant nor necessary. The opinion was inconclusive: the white spot could have been, but was not likely the chain and medallion. The jury was equally capable of watching the video and deciding whether the white spot was or was not the medallion. This was a simple matter of watching the video. Dr. Harlow's calculations were not necessary for jurors to decide this issue. In addition, the proposed evidence related to an issue the jurors were not required to decide — the origin of the white spot. The introduction of the expert evidence was more apt to sow confusion and divert the fact-finding function from the jury to the expert.

[38] At the gatekeeper stage of the expert evidence analysis, the trial judge considered the proposed evidence was of limited probative value on an issue that the jury could correctly decide without Dr. Harlow's opinion. Further, the prejudicial effect of the evidence was significant in that it risked distracting the jury from its core task — determining whether the appellant was the shooter.

The Arguments on Appeal

[39] The appellant says the trial judge got it wrong. Not once, but twice. At both the threshold and gatekeeper stages of the admissibility inquiry.

[40] According to the appellant, the trial judge approached the threshold admissibility decision too strictly. The criticisms he expressed about Dr. Harlow's testimony were relevant considerations for the jury to take into account in assessing the weight to assign to the evidence, but they were not barriers to admissibility. What is more, the opinion was necessary. The presence of the medallion was critical to the identification of the shooter. The poor quality of the video meant that the jury was left to speculate on an important issue for both parties, rather than equipped to make a fully informed decision on a subject beyond their experience.

[41] At the gatekeeping stage, the appellant contends that the trial judge failed to factor into his cost-benefit analysis that this was evidence tendered by the defence, not by the prosecution. As a result, the trial judge failed to consider two important factors:

(i) that in balancing probative value and prejudicial effect, defence evidence may only be excluded where the prejudicial effect of the proposed evidence substantially outweighs its probative value; and

(ii) that the rules of evidence are to be applied more flexibly where the proponent of the evidence is the defence.

These omissions, the appellant argues, are fatal to the trial judge's decision to exclude the evidence.

[42] The respondent rejects the claim of error advanced by the appellant. The trial judge got it right. At both steps or stages of the analysis.

[43] At the threshold stage, the respondent says, the proposed evidence was neither relevant nor necessary. Dr. Harlow acknowledged that, in light of his (unreliable) assumptions, the white glint could well have been the chain and medallion. This tepid conclusion lacked sufficient relevance to assist the jury in resolving the core issue of identification of the shooter. On the issue of identification, the jury was not in need of expert assistance on this single aspect of the identification when their conclusion required a reasoned assessment of the cumulative effect of several identifiers all of which pointed to the appellant.

[44] The respondent says the fatal flaw in the proposed evidence was that it was laden with many of the detrimental indicia associated with expert evidence. It was apt to distract the jury from its fundamental task of determining on all the evidence whether the Crown had proven beyond a reasonable doubt that the appellant was the shooter. Its potential effect on the jury exceeded its reliability as probative material. And in the end, it was an opinion that ventured beyond its author's area of expertise.

[45] As for the gatekeeper function, the respondent continues, the trial judge was obviously aware that the proponent of the evidence was defence counsel, not the Crown. Nothing said or left unsaid in the trial judge's reasons reflects an error of law or of principle, or any material misapprehension of the evidence. Deference remains the due of the trial judge. The evidence was properly excluded.

The Governing Principles

[46] The principles governing the admissibility of expert opinion evidence are well established and not in need of repetition. Yet, some aspects of those principles merit brief mention in view of the basis upon which the evidence was excluded and the errors alleged to warrant reversal of that decision.

[47] To begin, the framework for the admissibility of expert opinion evidence was established to guard against the dangers posed to the litigation of disputes by the introduction of expert evidence. This structure endeavours to ensure, as best it can, that the criminal trial process does not degenerate into trial by expert, and safeguards the ability of the trier of fact to critically assess the evidence to determine whether the accused's guilt has been proven beyond a reasonable doubt: R. v. Bingley, [2017] 1 S.C.R. 170, [2017] S.C.J. No. 12, 2017 SCC 12, at para. 13; White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182, [2015] S.C.J. No. 23, 2015 SCC 23, at paras. 17-18; R. v. Sekhon, [2014] 1 S.C.R. 272, [2014] S.C.J. No. 15, 2014 SCC 15, at para. 46. Trial by expert is neither an attractive nor a necessary prospect.

[48] In their essence, rules of admissibility are exclusionary. They exclude evidence that is both relevant and material. As a rule of admissibility, the opinion rule excludes relevant and material evidence. It does so because we leave it to the trier of fact, not witnesses, to form opinions, to draw inferences and to reach conclusions. We exclude opinions, those ready-formed inferences, because they are unhelpful to the trier of fact and might even be misleading: White Burgess, at para. 14; R. v. Graat, [1982] 2 S.C.R. 819, [1982] S.C.J. No. 102, at p. 836 S.C.R.

[49] But we do not exclude every opinion expressed by a witness. For example, we recognize that some issues require special knowledge, skill or expertise. We also realize that triers of fact are not necessarily equipped to draw reliable inferences from facts stated by witnesses. And so we allow witnesses to tell triers of fact their opinions about these issues, provided that the witnesses are qualified to do so: White Burgess, at para. 15; R. v. Abbey, [1982] 2 S.C.R. 24, [1982] S.C.J. No. 59 (Abbey '82), at p. 42 S.C.R.; R. v. Vassel, [2018] O.J. No. 4512, 2018 ONCA 721, at para. 86.

[50] The structure for the admissibility of expert opinion evidence has two components. The first — the threshold stage — imposes four basic requirements the proposed evidence must satisfy to qualify for reception. The second — the gatekeeper stage — requires the judge to balance the potential risks and benefits of admitting the evidence to determine whether the potential benefits justify the risks associated with its reception: White Burgess, at paras. 19, 23-24; R. v. Abbey (2009), 97 O.R. (3d) 330, [2009] O.J. No. 3534, 2009 ONCA 624, at para. 76, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 125 (Abbey '09).

[51] The requirements the proposed evidence must meet at the threshold stage are familiar:

(i) relevance;

(ii) necessity in assisting the trier of fact;

(iii) the absence of an exclusionary rule; and

(iv) a properly qualified expert.

See White Burgess, at para. 19; R. v. Mohan, [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, at p. 20 S.C.R.

[52] At the threshold stage, relevance refers to logical relevance, the relationship between the evidence and the fact in issue it is tendered to establish. Evidence is relevant where it is probative of the fact its proponent seeks to establish by its introduction: White Burgess, at para. 23; R. v. J. (J.-L.), [2000] 2 S.C.R. 600, [2000] S.C.J. No. 52, 2000 SCC 51, at para. 47; Abbey '09, at paras. 82, 84.

[53] To satisfy the necessity requirement at the threshold stage, the proposed evidence must be more than helpful to the trier of fact in its decision. A standard of "helpful" sets the bar for the requirement of necessity too low. Although necessity is not to be judged by too strict a standard, the proposed opinion must be necessary in the sense that it provides information which is likely to be outside the experience of the trier of fact. The evidence must be necessary to enable the trier of fact to appreciate the matters in issue because of their technical nature. Put in another way, the subject matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge: Mohan, at pp. 23-24 S.C.R.; Kelliher (Village) v. Smith, [1931] S.C.R. 672, [1931] S.C.J. No. 47, at p. 684 S.C.R.; Abbey '82, at p. 42 S.C.R.

[54] Like the requirement of relevance, the necessity of the proposed expert evidence is assessed in light of its potential to distort the fact-finding process. If, on the proven facts, the trier of fact can form their own conclusions without help, then the opinion of the expert is unnecessary, its introduction apt to overwhelm the trier of fact and distract them from their task: White Burgess, at para. 21; Mohan, at p. 24 S.C.R.; R. v. Turner, [1975] Q.B. 834, [1975] 1 All E.R. 70, at p. 841 Q.B.; Abbey '82, at p. 42 S.C.R.

[55] At the second stage — the gatekeeping step — the trial judge undertakes a cost-benefit analysis. The judge balances on the one hand the potential risks, and on the other the potential benefits of admitting the evidence. The judge does this in order to decide where the balance settles — whether the potential benefits justify the risks: Mohan, at p. 21 S.C.R.; White Burgess, at para. 24; Bingley, at para. 16. This exercise is best considered as an application of the general exclusionary rule: Mohan, at p. 21 S.C.R.; Bingley, at para. 16; Abbey '09, at para. 76.

[56] Absent an error of law or of principle, or a material misapprehension of the evidence, a trial judge's decision applying the cost-benefit analysis at the gatekeeper stage is entitled to deference on appeal: Abbey '09, at para. 97; see, also, R. v. D. (D.), [2000] 2 S.C.R. 275, [2000] S.C.J. No. 44, 2000 SCC 43, at para. 13; R. v. Bonisteel, [2008] B.C.J. No. 1705, 2008 BCCA 344, 236 C.C.C. (3d) 170, at para. 70.

[57] Two brief points about the introduction of defence evidence round out this discussion about governing principles.

[58] In connection with defence evidence, we recognize that a trial judge has a residual discretion to relax the strictness of admissibility rules where it is necessary to do so to prevent a miscarriage of justice and where the danger against which the rule aims to safeguard does not exist: R. v. Williams (1985), 50 O.R. (2d) 321, 18 C.C.C. (3d) 356 (C.A.), at pp. 372, 378 C.C.C., leave to appeal to S.C.C. refused (1985), 50 O.R. (2d) 321 n, [1985] 1 S.C.R. xiv, [1985] S.C.C.A. No. 168; R. v. Folland (1999), 43 O.R. (3d) 290, [1999] O.J. No. 143, 132 C.C.C. (3d) 14 (C.A.), at para. 48; R. v. Caesar, [2016] O.J. No. 4007, 2016 ONCA 599, 339 C.C.C. (3d) 354, at paras. 68-69. On the other hand, this discretion does not permit an abandonment of all conditions precedent to admissibility when the defence tenders the evidence: R. v. Kimberley (2001), 56 O.R. (3d) 18, [2001] O.J. No. 3603, 157 C.C.C. (3d) 129 (C.A.), at paras. 80-81, leave to appeal refused [2002] S.C.C.A. No. 29.

[59] A final point concerns the basis upon which a trial judge may exclude defence evidence where its prejudicial effect exceeds its probative value. Defence evidence may only be excluded on this basis where the prejudicial effect of the evidence substantially outweighs its probative value: R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, at p. 611 S.C.R.

The Principles Applied

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

[61] In my view, the trial judge was correct in refusing to admit the proposed opinion evidence of Dr. Harlow.

[62] The context in which the evidence is tendered for admission, as well as the nature of the evidence itself, are important factors in any analysis and decision involving the reception of expert evidence.

[63] It was common ground at trial that the shooter was the man whom Grant immobilized then released after the man approached Grant from behind within minutes of the robbery at Whispers. None of the eyewitnesses to the events identified the appellant, or anybody else, as that man and thus the shooter.

[64] To establish the appellant's identity as the shooter, the Crown relied on the cumulative force of several pieces of evidence. The video surveillance evidence coupled with Det. Idsinga's testimony identifying the appellant as the only person whose image appeared on the video who shared all the characteristics of the shooter. In addition, the appellant was at Whispers and the DNA evidence linked him to Grant.

[65] Dr. Harlow's proposed evidence was directed at one of the several identifiers visible in the video surveillance from outside Whispers: a white spot visible on the front of the shooter's shirt. The Crown submitted that this spot was a reflection of a chain and medallion around the shooter's neck, consistent with the length and size of chain and medallion seized from the appellant on arrest. Dr. Harlow considered this reflection a possible source of the white spot, but said it was unlikely because the spot did not move between two frames 0.133 seconds apart in the video surveillance.

[66] At the very least, the proposed evidence failed to satisfy the necessity requirement at the threshold stage of the admissibility analysis. Fundamental to Dr. Harlow's opinion were his observations of the surveillance videos and his conclusion that as between two frames the white spot did not move. The videos were available to the jury for their review. No special learning, skill or expertise was required to determine whether the spot moved or remained stationary between frames. Items of jewelry such as that seen here are commonplace in today's society. Likewise, their movement with the wearer's activities. None of this was beyond the everyday experience of the members of a jury. Nor was it something about which the jury was unlikely to get right absent expert opinion from a physicist.

[67] In addition, as the trial judge pointed out, at least some aspects of Dr. Harlow's opinion appeared to extend beyond his expertise as a physicist. For example, he took measurements of the appellant's face, then attempted to transpose them to scenes in the video in order to calculate various distances. It is at best uncertain whether this lies within the expertise of a physicist. It is all the more so when the conclusions are drawn without any knowledge of the operation of the cameras, the angles at which they were positioned, the distance of the objects from the cameras, the two-dimensional nature of the images and so on.

[68] The proposed evidence also fails at the gatekeeping stage of the analysis. Dressed up in scientific language and awash in a sea of mathematical formulae and calculations, its potential effect on a trier of fact far outstripped its probative value. It also tended to divert the jury's attention from their obligation to decide the controverted issue of identification on a single piece of evidence, about which the witness acknowledged uncertainty, rather than as the jury's obligation — the whole of the evidence. The witness had no way of knowing whether the medallion was stationary during the 0.133 second interval, or whether it had moved up and back down in that time.

[69] I would reject this ground of appeal.

Ground #2: The Defence of Provocation

[70] This ground of appeal alleges error in the failure of the trial judge to instruct the jury on the statutory partial defence of provocation and thus a verdict of manslaughter on this basis.² Some further background will situate this claim of error in its proper environment.

The Additional Background

[71] The defence advanced at trial, unsupported by the appellant's testimony or any other defence evidence, was a simple denial: "I am not the man".

[72] In support of his defence, the appellant pointed to several shortcomings in the Crown's case. He argued that the cumulative effect of the evidence adduced fell far short of the exacting standard of proof required in criminal cases. The videos were of poor quality, themselves incapable of establishing the appellant as the shooter. Their poor quality diminished the probative value of the evidence of Det. Idsinga, making it unsafe to rely upon it. The DNA evidence was unpersuasive in light of the appellant's admission that he was at Whispers, given that there were other ways that the DNA could have transferred to Grant's jacket, including that the appellant had been searched by Grant on entry.

Provocation at Trial

[73] Experienced trial counsel directed few questions to eyewitnesses to establish an evidentiary foundation for an argument later that provocation was in play as a basis for a verdict of manslaughter. Questions relating to the objective and subjective components of provocation. Such as the suddenness of the alleged wrongful act. And of the shooter's response. Questions of this nature could have been put to witnesses like Albert Grant, the cashier and the victim who survived the shooting without compromise of the primary defence advanced.

[74] The prospect of a verdict of manslaughter based on the statutory partial defence of provocation appears first to have been raised by defence counsel at trial during the pre-charge conference. Counsel relied on the surveillance videos as the basis for his submissions. He acknowledged that he had put no questions to any witnesses to lay an evidentiary foundation for the defence, but argued that he need not have done so because the groundwork was established by the video itself. The wrongful act relied upon was Grant's manhandling of the shooter by putting him in a headlock and immobilizing his hands with his baton.

[75] The trial Crown disputed the evidentiary foundation for provocation.

The Ruling of the Trial Judge

[76] When defence counsel asked the trial judge to instruct the jury on provocation, the trial judge questioned whether there was any evidence of a wrongful act on Grant's part when he responded to the man who approached him from behind. He also queried whether there was any evidence of a wrongful act that would deprive an ordinary person of the power of self-control.

[77] Defence counsel argued that what was recorded on the surveillance video put the statutory partial defence of provocation in play. The trial judge disagreed and said that he would not instruct the jury on provocation.

The Arguments on Appeal

[78] In this court, the appellant reiterates his submission that the events recorded on the video surveillance system satisfy the air of reality threshold for provocation. They reveal, he says, that Grant initiated the altercation with the shooter who approached him from behind. Grant committed an assault when he moved towards the shooter, put him in a headlock and immobilized his hands with the extendable baton. The video constituted direct evidence on both the objective and subjective elements of provocation.

[79] The appellant says that Grant's conduct was a wrongful act, an assault of the shooter. This act was of sufficient gravity that it could deprive an ordinary person of the power of self-control.

[80] Further, the appellant continues, Grant's wrongful act was spontaneous, not responsive to any physical contact by the shooter. The conduct was sudden, the shooter's response equally so. Grant's conduct and the shooter's immediate response afford evidence on the subjective element of provocation, in particular, the suddenness that must characterize both the wrongful act and the shooter's response.

[81] The appellant adds that even if the surveillance videos are characterized as circumstantial rather than direct evidence, the air of reality threshold to require submission of provocation to the jury has been met. Considered as a whole, the evidence would leave it open to a reasonable jury to draw the inferences necessary to have a reasonable doubt whether the appellant was acting under provocation when he murdered the deceased.

[82] The respondent contends otherwise. The evidence adduced at trial did not, indeed could not, satisfy the air of reality threshold to warrant submission of the statutory partial defence of provocation and its verdict consequence — manslaughter — to the jury.

[83] The respondent characterizes the evidentiary foundation proposed to satisfy the air of reality threshold as consisting entirely of circumstantial evidence. As a result, the totality of this evidence must be reasonably capable of supporting the inferences necessary to raise a reasonable doubt about provocation. This means that the evidence must be reasonably capable of sustaining the essential inferences on both the objective and subjective elements of provocation.

[84] The objective and subjective elements of provocation, the respondent reminds us, each include two components. The objective element includes a wrongful act or insult, which must be sufficient to deprive an ordinary person of the power of self-control. The subjective element requires not only that an accused respond to the wrongful act (as opposed to something else), but also that he do so on the sudden and before there was time for his passion to cool.

[85] The respondent says that the instigating conduct, the wrongful act or insult in former s. 232(2) of the Criminal Code, R.S.C. 1985, c. C-46, must be spontaneous and unforeseeable, not a predictable response to conduct of the person who seeks to rely on provocation. And it must make a significant impact on the person provoked, because it must be sufficient to cause an ordinary person to lose the power of self-control. The conduct must be considered in the context in which it occurred, not extracted from its surroundings and considered in splendid isolation.

[86] In this case, the respondent continues, the shooter initiated the confrontation by running up to Grant from behind. Grant's response was self-defending, predictable and brief. It ended with the shooter agreeing not to struggle, indicative of a resumption, not a loss of self-control. At all events, the prior conduct was not of such a nature or character that it would cause an ordinary person to lose the power of self-control and there was no evidence about the appellant's actual state of mind.

[87] The respondent joins issue with the appellant's claim that the trial judge impermissibly weighed the circumstantial evidence and drew determinate factual inferences from that evidence. Not so, says the respondent. The trial judge simply concluded, as he was entitled to do, that the field of factual inferences that could be drawn from the evidence as a whole did not include those essential to engage the defence of provocation.

The Governing Principles

[88] The parties do not differ on the essential elements of the statutory partial defence of provocation or on the standard the appellant was required to meet on the evidence adduced at trial to warrant submission of the defence to the jury. However, they part company on the adequacy of the evidence to satisfy the threshold to put the defence in play.

[89] The definition of provocation applicable in this case has since been repealed. The former s. 232(2) of the Criminal Code read:

232(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.

[90] Provocation only arises for consideration where the Crown has proven beyond a reasonable doubt that, in unlawfully killing the deceased, an accused committed murder: Criminal Code, s. 232(1); R. v. Tran, [2010] 3 S.C.R. 350, [2010] S.C.J. No. 58, 2010 SCC 58, at para. 10.

[91] Provocation consists of two elements, one objective, the other subjective. Each element has two components.

[92] The objective element consists of

(i) a wrongful act or insult; and

(ii) the wrongful act or insult is sufficient to cause an ordinary person to lose the power of self-control.

See R. v. Tran, at para. 25; R. v. Cairney, [2013] 3 S.C.R. 420, [2013] S.C.J. No. 55, 2013 SCC 55, at para. 33.

[93] The "ordinary person" is a legal concept, usually assimilated to the "reasonable person". It reflects the normative dimensions of the defence. In other words, behaviour which comports with contemporary society's norms and values worthy of the law's compassion. That said, the "ordinary person" does take into account some, but not all, of the individual characteristics of the accused: R. v. Tran, at paras. 30-34; R. v. Cairney, at para. 37; R. v. Thibert, [1996] 1 S.C.R. 37, [1996] S.C.J. No. 2, at paras. 14, 23.

[94] The subjective element requires that the accused must have

(i) acted in response to the wrongful act or insult (the provocation); and

(ii) acted on the sudden before there was time for his or her passion to cool.

See R. v. Tran, at para. 36; R. v. Cairney, at para. 34; R. v. Pappas, [2013] 3 S.C.R. 452, [2013] S.C.J. No. 56, 2013 SCC 56, at para. 34.

[95] The wrongful act or insult must be sudden, in the sense that it strikes on the mind of an accused who was unprepared for it. Likewise, the response of the accused to the sudden provocation must be equally sudden. In other words, suddenness must characterize both the provocation and the accused's response or reaction to it: R. v. Cairney, at para. 43; R. v. Pappas, at para. 35; R. v. Tripodi, [1955] S.C.R. 438, [1955] S.C.J. No. 29, at p. 443 S.C.R.

[96] A final point concerns the availability of provocation where the evidence tends to show that an accused was prepared for an insult or initiated a confrontation and received a predictable response which he later asserts amounted to a wrongful act. No absolute rule forecloses the availability of provocation in those circumstances. But such a result may usually follow because of the application of appropriate contextual factors to the question of whether an ordinary person would have lost the power of self-control: R. v. Cairney, at para. 45.

[97] The air of reality standard determines whether a defence need be left to the jury for its consideration. Its purpose is not to assess whether the defence is likely, somewhat likely, or very likely to succeed as a matter of fact at the end of the trial. Rather, it seeks to ensure that only those defences with a sound foundation are considered by the trier of fact: R. v. Cinous, [2002] 2 S.C.R. 3, [2002] S.C.J. No. 28, 2002 SCC 29, at paras. 53-54.

[98] In general terms, the question is whether a properly instructed jury, acting reasonably, could have a reasonable doubt about whether the essential elements of a defence are made out. The test is whether there is evidence upon which a properly instructed jury acting reasonably could draw the inferences necessary to give effect to the defence: R. v. Cinous, at paras. 65, 82; R. v. Cairney, at para. 21; R. v. Mayuran, [2012] 2 S.C.R. 162, [2012] S.C.J. No. 31, 2012 SCC 31, at para. 21.

[99] Where the defence in issue is the statutory partial defence of provocation, the air of reality standard must be satisfied for both the objective and subjective components of the defence: R. v. Pappas, at para. 21. In other words, the test is whether a reasonable jury, properly instructed, could draw the inferences necessary to have a reasonable doubt whether the accused was guilty of murder, on the basis of the defence of provocation: R. v. Pappas, at para. 21; R. v. Tran, at para. 41; R. v. Mayuran, at para. 21; R. v. Cairney, at para. 21.

[100] It is uncontroversial that the air of reality standard may be met by the introduction of direct evidence or circumstantial evidence. Where the evidence is circumstantial, however, this requires inferences to be drawn to establish the elements of the defence. In such cases, a trial judge may engage in a limited weighing of the evidence to determine whether the essential elements of the defence can reasonably be inferred from the evidence. But in this limited weighing exercise, the judge must not make findings of credibility or reliability, or findings of fact or draw determinate factual inferences: R. v. Cinous, at paras. 53-54, 87-91; R. v. Pappas, at paras. 22-25.

[101] Sometimes counsel may ask a trial judge to instruct a jury on a defence that is inconsistent with the defence advanced at trial. The air of reality test controls whether a defence not specifically advanced at trial should nonetheless be left to the jury. The test requires examination and assessment of the whole of the evidence, as well as the conduct of the trial as a whole. Incompatibility of the proposed defence with the primary defence does not, without more, mean that the proposed defence lacks an air of reality: R. v. Gauthier, [2013] 2 S.C.R. 403, [2013] S.C.J. No. 32, 2013 SCC 32, at paras. 32, 34; R. v. Graveline, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, 2006 SCC 16, at para. 10; R. v. Doucette, [2015] O.J. No. 4523, 2015 ONCA 583, 328 C.C.C. (3d) 211, at para. 30.

[102] The nature of the primary defence advanced may factor into a consideration of whether there is an "air of reality" to a defence which conflicts with the primary defence: R. v. Doucette, at para. 31; R. v. Phillips, [2017] O.J. No. 5022, 2017 ONCA 752, 355 C.C.C. (3d) 141, at para. 148. Incompatibility of the defences may leave evidentiary gaps on essential elements of the proposed defence that cannot be overcome.

The Principles Applied

[103] I would give effect to this ground of appeal.

[104] In this case, the evidence relied upon to satisfy the air of reality standard in connection with both the objective and subjective elements of provocation reduces to the surveillance videos and the testimony of Albert Grant.

[105] To determine whether the trial judge erred in failing to instruct the jury on the statutory partial defence of provocation, we must decide whether there was evidence on the basis of which a properly instructed jury, acting reasonably, could draw the inferences necessary for both the objective and subjective elements of the defence. Although the nature of the evidence adduced at trial permitted the trial judge to engage in a limited weighing of the evidence, it did not entitle him to make findings of credibility or reliability, as for example in connection with Albert Grant's testimony, or findings of fact or to draw determinate inferences.

[106] To take first, the objective element of provocation: a wrongful act or insult sufficient to cause an ordinary person to lose the power of self-control.

[107] It was open to the jury to infer that Grant's conduct — putting the shooter in a headlock, immobilizing his hands and arms with a baton and taking him forcefully to the ground — was a wrongful act. There was no evidence the shooter contacted Grant. Nor does the mere fact that the shooter approached Grant from the rear necessarily undermine the inference that Grant's response was sudden and wrongful. In addition, it was open to the jury to infer that Grant's conduct could cause an ordinary person to lose the power of self-control. The jury was not required to accept Grant's testimony that the shooter calmed down before Grant released him and the shots were fired.

[108] Turning to the subjective element of provocation: that the accused acted on the provocation on the sudden before there was time for his passion to cool. It was open to the jury to infer that the shooter's response to Grant's wrongful act was sudden, thus before the passion aroused by that wrongful act had time to cool.

[109] What controls the obligation of the trial judge to submit the statutory partial defence of provocation to the jury for its determination is the capacity of the evidence adduced at trial to support the inferences essential to give effect to the defence. In my view, the evidence in this case met that standard. It is not for me, as it was not for the trial judge, to say whether the defence was likely, somewhat likely, very likely or not at all likely to succeed as a matter of fact.

[110] In reaching this conclusion that the partial statutory defence of provocation should have been left to the jury, I am not unmindful of the failure of trial counsel to develop a more fulsome foundation for that defence. That he did not do so in light of his primary defence — identity — is understandable. In every event, the air of reality standard is what engages the trial judge's obligation. Once satisfied, the obligation follows. The issue is whether the standard is met, not by how much or how little it is satisfied. I have also kept in mind the instruction of the Supreme Court of Canada that in cases of doubt about the availability of the statutory partial defence, provocation should be left to the jury.

Conclusion

[111] For these reasons, I would allow the appeal, set aside the conviction of second degree murder and order a new trial on that count of the indictment.

Appeal allowed.

Notes

¹ The jury also found him guilty of two counts of discharging a firearm with intent to endanger life.

² The trial judge did instruct the jury on the availability of a manslaughter verdict based on inadequate proof of the fault element in murder.

End of Document