COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2020 ONCA 462

DATE: 20200716

DOCKET: C64901

Doherty, MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shaune Brown

Appellant

Alexander Ostroff, for the appellant

Elise Nakelsky, for the respondent

Heard: July 3, 2020 by Videoconference

On appeal from a conviction on a charge of second-degree murder, returned on February 2, 2017 by a jury presided over by Justice B.A. Glass of the Superior Court of Justice, and an appeal from the sentence imposed on March 2, 2017 and reported at 2017 ONSC 1441.

Doherty J.A.:

A. overview

[1] On the afternoon of August 30, 2012, the appellant repeatedly stabbed Cory Fleetwood at Mr. Fleetwood’s home in Peterborough. Mr. Fleetwood had invited the appellant to come from Toronto for a visit. Mr. Fleetwood died from his wounds.

[2] The appellant was charged with second-degree murder. He admitted killing Mr. Fleetwood. He claimed he acted in self-defence and did not mean to kill Mr. Fleetwood or cause him serious bodily harm that he knew was likely to cause Mr. Fleetwood’s death. The evidence also gave rise to the defence of provocation.

[3] The jury convicted the appellant of second-degree murder. The trial judge imposed a life sentence with no parole eligibility for 13 years. The appellant appealed conviction and sentence.

[4] On the conviction appeal, the appellant advanced five grounds. Two alleged misstatements of parts of the evidence by the trial judge, and in one instance by the Crown. The other grounds of appeal alleged misdirection in the jury instructions.

[5] The sentence appeal focused on the trial judge’s finding the appellant was the aggressor in the confrontation with Mr. Fleetwood.

[6] At the end of oral argument, the court advised counsel the conviction appeal was dismissed with reasons to follow. The court reserved judgment on the sentence appeal. These reasons set out the basis upon which both the conviction and sentence appeals are dismissed.

B. the evidence

[7] On August 30, 2012, the appellant travelled from his home in Toronto to Peterborough to visit Mr. Fleetwood. They had known each other since they were teenagers and got together from time-to-time to drink and play video games.

[8] The appellant arrived at Mr. Fleetwood’s home around 2:00 p.m. They set up their Xbox consoles, had a few drinks and smoked some marihuana. The appellant described himself as “buzzed”, but not drunk. A short time later, Mr. Fleetwood lay dead in his bedroom, having suffered 30 knife wounds, several of which were potentially fatal. The appellant had fled Mr. Fleetwood’s home and made his way back to Toronto. Mr. Fleetwood’s body was not found until four days later on September 3, 2012.

[9] Mr. Fleetwood and the appellant were the only people in Mr. Fleetwood’s home when the appellant killed Mr. Fleetwood. The only direct evidence of what happened came from the appellant.

[10] The appellant testified, while he and Mr. Fleetwood were playing video games and chatting, he mentioned to Mr. Fleetwood his house was very cluttered and messy. The appellant meant nothing by the comment, but Mr. Fleetwood took offence. He told the appellant the “stuff” cluttering his home belonged to his deceased father. The appellant assured Mr. Fleetwood he had not intended to disrespect his father.

[11] According to the appellant, Mr. Fleetwood went into the kitchen and returned with a large kitchen knife. He scratched the appellant’s Xbox. The appellant responded by grabbing Mr. Fleetwood’s hard drive and slamming it to the floor. The appellant decided it was time to leave and went upstairs to retrieve his bag and cellphone. His cellphone was charging in Mr. Fleetwood’s bedroom.

[12] As the appellant was leaving Mr. Fleetwood’s bedroom with his cellphone, Mr. Fleetwood confronted him at the door. He was angry and yelling at the appellant. The appellant pushed Mr. Fleetwood and he tripped and fell to the floor.

[13] Mr. Fleetwood got up and came aggressively toward the appellant, swinging at him. The appellant was still standing in Mr. Fleetwood’s bedroom. He put his right hand up to block what he thought was a punch coming from Mr. Fleetwood. In fact, Mr. Fleetwood had the large knife in the hand he was swinging toward the appellant. The appellant instinctively grabbed the knife blade with his right hand, as it came toward him. He suffered a deep cut between his thumb and forefinger. The appellant went to the hospital in Toronto later that night and received ten stitches to close the wound.

[14] The appellant testified when he grabbed the blade of the knife, he immediately felt intense pain. He could not, however, let go of the blade as he feared Mr. Fleetwood would stab him. They wrestled on the floor of the bedroom. The struggle went on and intensified. The appellant could not remember many of the details but did recall poking Mr. Fleetwood in the eye and eventually gaining control of the knife with his left hand.

[15] The appellant swung the knife with his left hand in Mr. Fleetwood’s direction. He also made stabbing motions toward Mr. Fleetwood. According to the appellant, his eyes were closed most of the time. He was in extreme pain from the cut on his hand, overwhelmed by the circumstances, and very afraid.

[16] The appellant knew he struck Mr. Fleetwood in the chest with the knife at least once. He could not say how many times he hit him with the knife, or where those blows landed on Mr. Fleetwood.

[17] The appellant did not know exactly how the struggle with Mr. Fleetwood ended. He was able to make his way from the bedroom to the bathroom. He closed the door in an effort to get away from Mr. Fleetwood. The appellant believed Mr. Fleetwood was still alive, because he heard him make “gurgling” sounds in the bedroom. The appellant passed out in the bathroom. When he regained consciousness, he washed his hands and placed a facecloth around the cut on his right hand. He tried to clean up the blood in the bathroom using water and cleaning products he found in the bathroom.

[18] The appellant next returned to the bedroom and saw Mr. Fleetwood’s body lying on the floor. He appeared to be dead. There was blood everywhere. The appellant made no effort to determine whether Mr. Fleetwood was dead or alive.

[19] The appellant did not call 911 or otherwise seek any help. Instead, he set about cleaning up the blood in the bedroom, hallway and bathroom using water and cleaning products. There was evidence from which it could be inferred the appellant showered, although he denied doing so.

[20] The appellant put various bloodstained items, including Mr. Fleetwood’s Xbox, his cellphone, the appellant’s own clothing, and blood-soaked towels, into two garbage bags and a smaller bag. The appellant took the bags with him when he left Mr. Fleetwood’s home. As he headed to the bus station, he dropped the bags full of the bloodied material beside other garbage bags on the curb awaiting garbage pick-up.

[21] The appellant acknowledged in his evidence he attempted to clean up his blood at the scene and removed various bloodied items from the residence. When asked why he did so, he replied:

Cuz my blood was on it…because I was scared, I was confused, and I just didn’t want no part of what just happened.

[22] The appellant returned to Toronto. He lied to his ex-girlfriend about his whereabouts that afternoon. He lied to his brother about the cause of the injury on his hand. He repeated that lie to the doctor who stitched him up that night at a Toronto hospital.

[23] The large kitchen knife used to kill Mr. Fleetwood was found about four feet from his body. DNA testing linked blood on the blade and the handle to the appellant. DNA testing also linked blood found on the knife to Mr. Fleetwood. The copious amounts of blood in the bedroom were linked to Mr. Fleetwood only.

[24] While the defence case rested on the testimony of the appellant, the Crown’s case relied on the evidence of the number, location, and nature of the wounds inflicted on Mr. Fleetwood by the appellant, and the appellant’s conduct after he killed Mr. Fleetwood. I have summarized his after-the-fact conduct. The Crown argued the appellant’s failure to call for help, his attempt to clean up the scene, his flight, his removal of material evidence from the scene, and the lies he told to various people were all consistent with the appellant having unlawfully killed Mr. Fleetwood, and inconsistent with the appellant’s claim he acted in self-defence. The trial judge instructed the jury the after-the-fact conduct, although relevant to whether the appellant acted in self-defence, could not assist the jury in differentiating between murder and manslaughter.

[25] The evidence about the many wounds suffered by Mr. Fleetwood came primarily from Dr. Rose who performed the post-mortem. She located 30 wounds, all consistent with having been inflicted by a sharp knife. Mr. Fleetwood had wounds on his face, head, hands, the front and back of his torso, and his arms.

[26] Dr. Rose explained she followed the usual protocol in describing the many wounds suffered by Mr. Fleetwood. She characterized all of the wounds as “sharp force injuries”, meaning injuries inflicted by an object that had a pointed tip and a sharp edge. A sharp knife is the most common example of a weapon that causes “sharp force injuries”.

[27] Dr. Rose divided the sharp force injuries into two categories. One category, incised wounds, consists of wounds that are longer than they are deep. Incised wounds are inflicted with a slashing motion. They are not, however, necessarily “shallow” wounds. By definition, they are longer than deep, meaning a long incised wound might also be quite deep.

[28] The second category of wounds, stab wounds, are wounds that are deeper than they are long. Those wounds are inflicted with a thrusting or stabbing motion.

[29] Dr. Rose testified the decomposition of Mr. Fleetwood’s body made it difficult to characterize some of the wounds as incised or stab wounds. She also indicated the decomposition of the body and the number of wounds to the torso made it impossible to match specific wounds on the torso to specific internal injuries.

[30] Dr. Rose identified the following knife wounds on Mr. Fleetwood’s body:

• Two incised wounds on his scalp. Both wounds pierced all layers of the scalp down to the skull;

• Four wounds to the face, including one that cut through the cartilage composing the nasal septum;

• Twelve wounds to the torso, four to the front, one to the side, and seven to the back; and

• Ten incised wounds on Mr. Fleetwood’s arms and two on the hand. Dr. Rose characterised these as “defensive type injuries”.

[31] Dr. Rose could not opine on the order in which the many blows were inflicted. Nor could she identify a specific wound as the cause of death. Several of the wounds to the torso caused significant damage to various internal organs, including the liver, both lungs, the heart and the thoracic aorta.

[32] Various injuries to Mr. Fleetwood’s internal organs were potentially fatal on their own. The stab wound piercing the front and back walls of Mr. Fleetwood’s thoracic aorta would have caused his death within a few minutes. Dr. Rose testified the wounds to the torso, considered as a group, caused Mr. Fleetwood’s death.

[33] Dr. Rose observed some of the wounds, including some of the wounds to the torso, cut through bone, cartilage or muscle, indicating the appellant used significant force to inflict those wounds.

[34] In cross-examination, Dr. Rose confirmed the decomposed state of the body made it impossible to characterize some of the wounds as either incised or stab wounds. Dr. Rose also agreed some of the wounds on Mr. Fleetwood’s torso could have been caused by knife wounds inflicted using a swinging rather than a stabbing motion.

C. the grounds of appeal

(i) Did the Crown and the Trial Judge Misstate the Forensic Evidence?

[35] Crown counsel, in the course of cross-examining the appellant and in her closing argument, repeatedly referred to “30 stab wounds” when describing Mr. Fleetwood’s injuries. The trial judge also referred to “30 stab wounds” from time-to-time in his instructions when referring to the evidence of the wounds suffered by Mr. Fleetwood.

[36] The appellant contends the reference by the Crown and the trial judge to “30 stab wounds” amounted to a serious misstatement of Dr. Rose’s evidence. The appellant argues, on Dr. Rose’s evidence, only some of the knife wounds were stab wounds. As outlined above, Dr. Rose described all 30 knife wounds as “sharp force injuries”, some of which she characterized as incised wounds (longer than deeper); some she characterized as stab wounds (deeper than long); and some she could not definitively characterize as either incised or stab wounds.

[37] Counsel submits the Crown and the trial judge were required to distinguish between incised wounds and stab wounds when referring to the knife wounds in cross-examination, closing argument, or the instructions to the jury. The appellant submits the distinction drawn by Dr. Rose was important to the defence in that Dr. Rose’s description of the manner in which incised wounds were inflicted was consistent with the appellant’s description of swinging the knife blindly in an effort to defend himself.

[38] The distinction between incised wounds and stab wounds, as articulated by Dr. Rose, offered some support for the defence position concerning the manner in which the injuries occurred. I observe, however, that support seems limited. The many internal injuries inflicted on Mr. Fleetwood by the appellant clearly indicate he was doing more than blindly waving the knife about. It is also significant experienced trial counsel did not rely on the distinction between incised wounds and stab wounds in his closing argument. Instead, counsel relied on the “20 or 30” blows struck by the appellant with the knife as indicative of the appellant’s desperation.

[39] Whatever the value to the defence case of the distinction between incised wounds and stab wounds might have been, I do not accept Crown counsel or the trial judge were required to use exclusively Dr. Rose’s nomenclature when referring to the knife wounds. Dr. Rose used the terminology commonly employed by pathologists to help her describe the contours of individual knife wounds. To the extent counsel or the trial judge were referencing Dr. Rose’s evidence, it is incumbent on them to do so accurately. However, in referring to the wounds themselves, ordinary parlance allows for the description of all wounds inflicted with the knife as stab wounds. I see nothing misleading in referring to 30 stab wounds when describing the number of wounds, or the location of the wounds on Mr. Fleetwood’s body.

[40] For example, in cross-examination, Crown counsel sought to stress the number and location on Mr. Fleetwood’s body of the many knife wounds inflicted by the appellant. The Crown did so to rebut the appellant’s evidence he swung wildly and defensively with his eyes closed, not meaning to cause Mr. Fleetwood serious harm. For the purposes of the Crown’s questions, it did not matter whether any particular wound was characterized by Dr. Rose as an incised wound or a stab wound. What mattered to the Crown’s questions was the number of wounds and the location of the wounds on Mr. Fleetwood’s body. In that context, there is nothing misleading in the use of the more generic phrase “stab wounds”. The same observation applies to the trial judge’s reference to “30 stab wounds” in the course of his summarizing parts of the evidence relevant to the various issues.

[41] There was no objection by counsel for the appellant to the Crown’s questioning or to the language used by the trial judge in reference to the “30 stab wounds”.

[42] Counsel for the appellant also argues some of the appellant’s answers to Crown counsel’s questions about “30 stab wounds” indicate those questions were misleading. I disagree. On occasion when answering questions in which the Crown had made reference to “30 stab wounds”, the appellant referred to Dr. Rose’s distinction between incised wounds and stab wounds. To the extent the appellant regarded that distinction as relevant to his answer, he was entitled to make the distinction as part of his answer. However, the Crown was not obliged to incorporate the distinction, which the Crown viewed as irrelevant for its purposes, into the question.

[43] Not even Dr. Rose maintained the distinction between incised wounds and stab wounds throughout her evidence. She used the phrase “stab wounds” when referring to all of the wounds to the torso, although she testified she could not characterize some of those wounds as incised or stab wounds due to the decomposition of the body. The stab wounds to Mr. Fleetwood’s torso caused his death.

[44] It goes without saying that all counsel and trial judges do their best to state the evidence accurately. Neither the Crown nor the trial judge are, however, required to use terminology that best accords with the defence position. Considered in the context in which the trial judge and the Crown used the phrase “30 stab wounds”, and bearing in mind the limited purpose underlying the distinction drawn by Dr. Rose between incised wounds and stab wounds, the use of the phrase “30 stab wounds” did not misstate her evidence or mislead the jury.

(ii) Was the W.(D.) jury instruction adequate?

[45] The appellant makes three arguments:

• the jury was not told it must consider the appellant’s testimony in accordance with the three-step process described in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742;

• the W.(D.) instruction on self-defence was misplaced, incomplete and potentially confusing; and

• there was no W.(D) instruction with respect to the defence of provocation or the mens rea requirement.

[46] The trial judge gave a thorough instruction on the presumption of innocence and the burden of proof at the outset of his charge. He did not give the W.(D.) instruction typically given when an accused testifies: see D. Watt, Watt’s Manual of Criminal Jury Instructions, 2^nd ed., Carswell (2015): Final Instruction #16. The trial judge was not asked to give that instruction.

[47] The customary W.(D.) instruction may well have been unhelpful, if not confusing. On that instruction, a jury is told to acquit, either if it believes the accused’s denial, or has a reasonable doubt, based on his evidence. That instruction does not accurately describe the application of reasonable doubt to the accused’s evidence when the defences of self-defence or provocation are advanced. Those defences have objective as well as subjective components. A jury may believe an accused’s testimony, or at least not reject it as untrue, and still find the accused did not act in self-defence or under provocation, as those terms are defined in the criminal law. The appellant relied on both self-defence and provocation. Neither could be properly assessed using the standard W.(D.) instruction: see R. v. Reid, 2003 CanLII 14779 (ON CA), [2003] O.J. No. 2822 (C.A.), at paras. 72-73; R. v. Sadiqi, 2013 ONCA 250, at paras. 21-22.

[48] The absence of a W.(D.) instruction does not necessarily amount to an error in law. As appellate courts have repeatedly stated, their assessment of the adequacy of jury instructions must proceed on a functional basis. Did the instructions, considered as a whole, adequately equip the jury to properly apply the law to the facts as found by the jury?: see R. v. Colnen, 2019 SCC 6, at para. 8; R. v. Vassel, 2018 ONCA 721, at para. 151.

[49] The jury instructions in this case repeatedly reminded the jury the burden of proof remained on the Crown throughout and applied to each element of the offence of murder and each element of the defences of self-defence and provocation. I am satisfied, by the end of the instruction, the jury understood it must give the accused the benefit of any doubt, regardless of the evidentiary source of that doubt.

[50] The trial judge did give a W.(D.) instruction in respect of the defence of self-defence. He gave the instruction, as counsel for the appellant submits, after his instruction on the first of the three elements of the defence of self-defence.[^1] The trial judge told the jury:

Now, if you accept the accused’s evidence and on the basis of it, you believe or have a reasonable doubt that he was acting in lawful self-defence as I have defined that term to you, you will find the accused man, Mr. Brown, not guilty.

Even if you do not accept Mr. Brown’s evidence, if, after considering it alone or in conjunction with the other evidence, you believe or have a reasonable doubt that he was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.

[51] The trial judge’s language reflects the modified W.(D.) instruction described in R. v. Reid. The appellant contends the instruction would have confused the jury, as the trial judge had not yet defined self-defence for the jury, but had addressed only the first of the three elements of that defence. It is true, although the trial judge had outlined all three elements of self-defence before he gave the modified W.(D.) instruction, he had not explained the second and third elements.

[52] The trial judge’s placement of the W.(D.) instruction after his description of the first element of the defence and before his description of the second and third may strike those familiar with the format of Model Jury Charges as awkward and even confusing. I do not think it would have that effect on 12 reasonable jurors unfamiliar with Model Jury Charges. The instruction was simple and straightforward. The jury was told it must take the definition of self-defence from the trial judge and, if based on the jury’s acceptance of the accused’s evidence, or a consideration of the accused’s evidence in conjunction with the other evidence, the jury had a doubt about the applicability of self-defence, the jury had to acquit the appellant.

[53] The appellant next submits the W.(D.) instruction, as it relates to self-defence, was incomplete as it failed to refer to the third prong of the W.(D.) instruction. That prong requires the trial judge to instruct the jury, even if the appellant’s evidence does not leave the jury with a doubt, the jury can convict only if, based on the evidence it does accept, the Crown has proved guilt beyond a reasonable doubt. Although the trial judge repeatedly instructed the jury the Crown had the burden on each essential element of the defence of self-defence, he did not instruct the jury in the terms of the third prong in W.(D.).

[54] On the evidence in this case, if the jury totally rejected the appellant’s evidence, I see no reasonable prospect of any result other than a conviction on the charge of second degree murder. The appellant admitted he stabbed Mr. Fleetwood 30 times. Several of the wounds to the torso were potentially fatal. The appellant’s post-offence conduct strongly suggested he did not act in self-defence. If the jury rejected the appellant’s version of events outright, there was virtually nothing left in the evidence to offer any reasonable support for the defences of self-defence and provocation, or the claim the appellant did not act with the necessary intent.

[55] There was no objection to the trial judge’s W.(D.) instruction on self-defence, either in the pre-charge discussions or after the charge was given. Counsel’s silence at trial accurately reflects the reality of the evidence. The defences advanced depended entirely on the jury at least being uncertain about the truth of crucial portions of the appellant’s testimony. If the jury’s credibility assessment effectively removed the appellant’s evidence from the mix, I see no prospect of anything but a conviction on the murder charge. If the failure to recite the third prong of the W.(D.) instruction amounts to a legal error, it was harmless legal error in this case.

[56] I also reject the appellant’s submission the trial judge’s failure to give a specific W.(D.) instruction in respect of provocation and intent amounts to reversible error. The trial judge could have given a modified W.(D.) instruction in respect of provocation, although it must be said it was not the appellant’s evidence, but the other evidence in the case, that lent some air of reality to the provocation defence. The trial judge could also have given the typical W.(D.) instruction in respect of intent. Instead, he repeatedly reminded the jury of the burden of proof and thoroughly reviewed the evidence relevant to provocation and intent. To the extent that evidence was exculpatory, it came almost entirely from the appellant. I am confident the jury appreciated it had to carefully consider the appellant’s evidence, on its own and in the context of the rest of the evidence. I am equally satisfied the jury understood that any doubt with respect to the essential elements of provocation, or the issue of intent, had to be resolved in the appellant’s favour.

(iii) The instruction on the mens rea for murder

[57] The trial judge described the appellant’s state of mind as the third essential element to be proved by the Crown to establish guilt on the murder charge. After addressing the first two elements (causation and the unlawful act requirement), the trial judge turned to the mental state required for murder. He said:

Earlier, I instructed you that to decide whether Crown counsel had proved beyond a reasonable doubt that Shaune Brown meant either to kill Cory Fleetwood, or meant to cause Cory Fleetwood bodily harm that Mr. Brown knew was likely to kill Mr. Fleetwood and was reckless whether Mr. Fleetwood died or not, you must consider all of the evidence.

[58] The trial judge correctly identified the mens rea for murder in the above-quoted passage. Unfortunately, he misspoke when he indicated he had already instructed the jury on the mens rea required for murder. He had not.

[59] The trial judge went on to review the evidence relevant to intent in detail, and to remind the jury of the Crown’s burden of proof. He emphasized the need to examine the evidence as a whole. The trial judge returned to the mens rea requirement, repeating the instruction the Crown must prove either the appellant meant to kill Mr. Fleetwood or meant to cause him bodily harm he knew was likely to kill Mr. Fleetwood and was reckless as to whether death ensued.

[60] During deliberations, the jury asked the trial judge to clarify the state of mind required for murder. The trial judge provided a succinct and accurate response. There was no objection.

[61] Instructions to the jury must be considered as a whole, including any answers to questions posed by the jury. Assuming the trial judge’s misstatement in his initial instructions could potentially have caused some confusion, his concise and correct answer to the specific question posed by the jury removed any possibility of confusion as to the requisite mens rea for murder.

(iv) Did the trial judge err in his response to the jury’s question on provocation?

[62] The trial judge correctly left provocation with the jury, even though the appellant resisted any suggestion he lost control of himself during the fatal encounter with Mr. Fleetwood. The appellant does not take issue with the initial instructions on provocation.

[63] The jury asked three questions relating to the instructions on provocation. The appellant’s argument on appeal focuses on the third question. In that question, the jury asked for “the legal definition of loss of self-control”.

[64] The trial judge, after hearing submissions from counsel, interpreted the jury’s question as directed at the second of the four elements of the defence of provocation, outlined by the trial judge in his initial instructions. In describing that element, the trial judge had told the jury to determine whether the wrongful act or insult was sufficient “to deprive an ordinary person of the power of self-control”.

[65] The trial judge told the jury the words should be given their “ordinary meaning”. He went on to remind the jury of the ordinary person standard to be applied in addressing loss of self-control. In answering the question as he did, the trial judge followed the submissions of counsel for the appellant. The Crown had requested a wider response which included reference to the appellant’s state of mind. The Crown took the position the appellant had all but denied losing self-control in his testimony. On this view of the evidence, any reference to the subjective component of provocation could not help the appellant.

[66] On appeal, the appellant argues the trial judge erred in focusing exclusively on the ordinary person standard when answering the question. He submits the jury should have been instructed on the other elements of the defence that engage the appellant’s subjective state of mind.

[67] I interpret the question as the trial judge did. The trial judge properly focused his answer on the specific question asked. That question did not invite further instructions on other elements of the provocation defence.

(v) Did the trial judge misstate the appellant’s evidence?

[68] The appellant submits the trial judge repeatedly told the jury the appellant went to the bathroom after the struggle with Mr. Fleetwood ended “to clean up”. The appellant testified he made his way from the bedroom to the bathroom and closed the bathroom door in an effort to get away from Mr. Fleetwood. The appellant submits the trial judge’s misstatement of his purpose in going to the bathroom significantly undermined his self-defence claim.

[69] I have outlined the appellant’s evidence on this point earlier in my reasons (see para. 17). It was common ground the appellant, after stabbing Mr. Fleetwood many times, made his way to the bathroom and, while in the bathroom, attempted to clean the blood in the bathroom and from his hands (at least) before he returned to the bedroom, where Mr. Fleetwood lay dead or dying. The appellant then set about trying to clean up his blood in the bedroom. The appellant maintained, however, that his purpose in going into the bathroom was not to clean up, but to get away from Mr. Fleetwood, who he believed was still alive.

[70] The trial judge referred to the evidence relating to the appellant’s movement to the bathroom and his actions in the bathroom on four occasions during his instructions. On one of these occasions, when reviewing the position of the defence, the trial judge accurately set out the appellant’s evidence he went to the bathroom to try to get away from Mr. Fleetwood.

[71] On the other three occasions, the trial judge made briefer references to the evidence and related it to certain issues pertaining to self-defence or the required mens rea. At least one of those references, and perhaps two, could be understood as the trial judge indicating the evidence was the appellant had gone to the bathroom to clean up. While that was the inference urged by the Crown, it was contrary to the appellant’s evidence.

[72] I accept at least one, and perhaps two, of the trial judge’s references to the evidence can reasonably be characterized as a potentially misleading description of the appellant’s evidence. I do not, however, agree these statements vitiated the verdict.

[73] The trial judge reminded the jury that it was their responsibility to determine the facts and their recollection of the evidence that mattered. I see no reason to think the jury did not follow that instruction.

[74] I also do not share the appellant’s view as to the significance of the trial judge’s misstatement of the evidence. The after-the-fact conduct, considered as a whole, provided powerful evidence pointing away from self-defence. Assuming the appellant initially went to the bathroom to get away from Mr. Fleetwood, there remained a formidable body of after-the-fact conduct supporting the Crown’s position. On the appellant’s own evidence, he remained in the bathroom, attempting to clean up the blood without making any effort to assist Mr. Fleetwood, even though he knew he had stabbed Mr. Fleetwood and Mr. Fleetwood was making “gurgling” sounds in the bedroom. Even after the appellant returned to the bedroom, he focused on attempts to destroy potential evidence, rather than making any effort to assist Mr. Fleetwood.

[75] There no doubt may be a case in which a trial judge misstates the evidence on a single crucial point in a manner that so prejudices the appellant, as to result in a miscarriage of justice. That is not this case.

D. the sentence appeal

[76] The trial judge increased the period of parole ineligibility from the minimum of 10 years to 13 years because of the very violent nature of the murder, his finding the appellant was the aggressor, and the appellant’s significant criminal antecedents.

[77] This court defers to the sentence imposed by the trial judge, absent a demonstrated error in law or principle, or a determination the sentence is demonstrably unfit: see R. v. Lacasse, 2015 SCC 64, at paras. 11, 43-44, 52; R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] S.C.J. No. 28, at paras. 89-91.

[78] The appellant contends the jury’s rejection of his provocation and self-defence claims did not provide a basis upon which the trial judge could find the appellant was the aggressor. I accept the jury’s verdict does not necessarily compel the conclusion the appellant was the aggressor. Nor, however, does the verdict preclude the trial judge from finding the appellant was the aggressor. That factual finding is not inconsistent with any factual finding implicit in the jury’s verdict: see R. v. Ferguson, 2008 SCC 6, at paras. 16-18; R. v. Landry, 2016 NSCA 53, at para. 48; Criminal Code, s. 724(2).

[79] The physical evidence and the appellant’s post-offence conduct offered ample support for the trial judge’s conclusion the appellant was the aggressor. Although the trial judge did not specifically indicate he made the finding on the reasonable doubt standard, there is nothing in his reasons to suggest he applied the wrong standard.

[80] The trial judge did not err in law or principle and the sentence is not demonstrably unfit.

E. conclusion

[81] The appeal from conviction is dismissed. The appeal from sentence is dismissed.

Released: “DD” “JULY 16 2020”

“Doherty J.A.

“I agree J.C. MacPherson J.A.”

“I agree M.L. Benotto J.A.”

[^1]: The trial judge charged the jury on the applicable self-defence provision, as it existed at the time of the homicide. That section has been repealed and replaced by the present s. 34: S.C. 2012, c. 9, s. 2.