COURT OF APPEAL FOR ONTARIO DATE: 20230606 DOCKET: C66978
Trotter, Harvison Young and Favreau JJ.A.
BETWEEN
His Majesty the King Respondent
and
Shaquille Collins Appellant
Counsel: Lance Beechener and Brendan Monk, for the appellant Michael Bernstein, for the respondent
Heard: December 19, 2022
On appeal from the conviction entered on June 23, 2018, by Justice Andrew J. Goodman of the Superior Court of Justice, sitting with a jury.
Trotter J.A. :
A. Overview
[1] In the aftermath of a street fight gone awry, the appellant was charged with the first degree murder of Mr. James Bajkor (Criminal Code, R.S.C. 1985, c. C-46, s. 235(1)) and the attempted murder of Mr. Justin Beals (s. 239).
[2] The Crown contended that the appellant planned and intended to kill Mr. Beals but ended up killing Mr. Bajkor by accident. The appellant claimed he fired two warning shots into the air to scare Mr. Beals, and then fired more shots in self-defence, and he did not mean to kill anyone.
[3] A jury found the appellant guilty of both charges.
[4] The appellant appeals his convictions. He submits that the trial judge erred in his instructions on the fault requirements of both offences. He also submits that the trial judge erred in failing to grant a mistrial following the testimony of a Crown witness, an accomplice, who mentioned that the appellant had been “convicted” at an earlier trial. [^1]
[5] I would dismiss the appeal from the appellant’s conviction for first degree murder. The trial judge’s instructions reveal no error on this count. However, in my view, the trial judge erred in his instructions on the mens rea for attempted murder. This error cannot be saved by the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. However, instead of ordering a new trial on this count, I would substitute a conviction for aggravated assault contrary to s. 268 of the Code. Finally, I would not disturb the trial judge’s exercise of discretion in dismissing the mistrial application.
B. Background
(1) The Street Fight
[6] Late in the afternoon of May 21, 2012, the appellant encountered Justin Beals on a street in Hamilton, who was with his girlfriend, Amber Thorogood. Animosity existed between the two men. Months earlier, when they were both incarcerated at the Hamilton-Wentworth Detention Centre, Mr. Beals and other inmates had attacked the appellant.
[7] The appellant was angry to see Mr. Beals again and a fight broke out. The appellant said, “I’m going to kill you”, and started grabbing and swinging at Mr. Beals. Mr. Beals initially did not want to fight, but when the appellant threw a punch at Ms. Thorogood, Mr. Beals began punching back.
[8] Ms. Thorogood ran down the street toward the house where her cousin, Brandon Hackett, resided, at 16 Milton Avenue (“16 Milton”). Mr. Beals trailed behind her, all the while still engaged in a fight with the appellant. When Ms. Thorogood reached 16 Milton, she banged on the side door and called for her cousin to come out and to bring a weapon. At that point, she saw Mr. Bajkor, the 22-year-old landlord of 16 Milton, who was in the backyard.
[9] Ms. Thorogood and her cousin, armed with a steak knife, ran back down the street to where the appellant and Mr. Beals were still fighting. According to the appellant, Mr. Hackett had his hand in his pants, as if he was carrying a gun. A bystander yelled out “gun” and everyone scattered. Mr. Beals, Ms. Thorogood, and Mr. Hackett retreated to 16 Milton.
(2) The Appellant Calls for Back-Up
[10] The appellant called his friends Shamar Tynes and Christopher Newton for back-up. Mr. Newton called for a taxi to take him and Mr. Tynes to where the appellant was located. They picked up the appellant and headed for 16 Milton. According to Mr. Tynes, the appellant explained that he had been “jumped” and chased by people with a gun. The taxi stopped a short distance from 16 Milton.
(3) The Shooting
[11] Mr. Beals, Ms. Thorogood, and Mr. Hackett were standing on the front lawn of 16 Milton when they saw the taxi pass and stop just up the street. Mr. Beals quickly fashioned himself a weapon by filling one of his socks with a metal object.
[12] Mr. Tynes handed the appellant a Colt .45 semi-automatic handgun that had been concealed under his hoodie. The appellant “racked” the gun and ran towards 16 Milton. When Mr. Beals, Ms. Thorogood, and Mr. Hackett saw the appellant was carrying a gun, they ran towards the side door of the house, located in the alleyway between 16 Milton and the neighbouring house. Ms. Thorogood went in the side door first, followed by Mr. Hackett.
[13] The appellant ran down the alleyway after them. He fired five shots in rapid succession. Two bullets hit Mr. Beals before he was able to get in the house. He was shot in his arm and in his abdomen and was critically injured. One bullet hit Mr. Bajkor in the back. He later died from his injuries at the hospital.
[14] The appellant, Mr. Tynes, and Mr. Newton fled the scene.
[15] This series of events – from when the appellant got out the taxi, fired five shots, and then fled from 16 Milton – took 27 seconds.
(4) The Investigation
[16] Ms. Thorogood called 911, as did a neighbour, John Bennett. After hearing the gunshots, Mr. Bennett walked over to 16 Milton and discovered Mr. Bajkor on the ground in front of the garage. He was still lucid and told Bennett that he did not know who shot him.
[17] The police and first responders arrived shortly after. Before Mr. Bajkor was taken to the hospital, an officer asked him, “Where did it happen?” He responded, “There, in the side alley.” It was unclear whether he was referring to where he had been shot or where the shooting had come from.
[18] In the alleyway, the police found five bullet casings between the gate (at the front of the property) and the side entrance of 16 Milton. All shots were fired near to where the casings were found. The screen door had been penetrated by two bullets which were found on an adjacent property behind 16 Milton.
(5) The Trial, Appeal, and Retrial
[19] The appellant, Mr. Newton, and Mr. Tynes were all charged with first degree murder and attempted murder. Mr. Tynes pleaded guilty to manslaughter; the appellant and Mr. Newton pleaded not guilty and were tried together. On June 12, 2014, the appellant and Mr. Newton were found guilty of the first degree murder of Mr. Bajkor and the attempted murder of Mr. Beals. This court set aside the convictions and ordered a new trial: R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508. Mr. Newton subsequently pleaded guilty to manslaughter. The appellant was re-tried alone.
[20] The Crown’s position at trial was that the appellant started the street fight and then followed Mr. Beals to 16 Milton intending to kill him, just as he said he would. He wanted to settle the score for the prior prison altercation or “jail beef”. As noted above, the Crown’s theory of liability was that the appellant, while intending to kill Mr. Beals, fired the shot that accidentally killed Mr. Bajkor.
[21] The defence contended that the street fight was mutual, and the appellant lost. The appellant testified that he went to 16 Milton to scare Mr. Beals, beat him up, and retrieve items he claimed Mr. Beals had stolen from him during the fight. He admitted that he had called Mr. Tynes and Mr. Newton for back-up.
[22] The appellant claimed that he initially fired two shots into the air to scare Mr. Beals and to prove that the gun was real. He said that the shots were fired over Mr. Beals’ head, high into the air. He fired three more shots in self-defence after Mr. Beals tried to disarm him.
[23] The appellant was found guilty on both counts. On his first degree murder conviction, he was sentenced to life imprisonment without eligibility for parole for 25 years; he received a concurrent life sentence for the attempted murder conviction.
C. Issues
[24] The appellant raises the following grounds of appeal: (1) the trial judge erred in instructing the jury on the contemporaneity principle as it related to the first degree murder charge; (2) the trial judge erred in his instruction on the mens rea required for attempted murder; and (3) the trial judge erred by refusing to declare a mistrial.
D. Analysis
(1) Instructions on contemporaneity and the mens rea for murder
(a) Background
[25] The appellant submits that the trial judge failed to adequately instruct the jury that the appellant had to possess the mens rea for murder at the precise time that he fired the fatal shot that killed Mr. Bajkor, as required by s. 229(b) of the Criminal Code.
[26] I would reject this ground of appeal.
[27] The appellant acknowledged that he fired five bullets during the incident. All five bullet casings were accounted for; however, two of the bullets were never found. As noted, the appellant testified that he fired two bullets as warning shots, over the head of Mr. Beals. Importantly for the purposes of this appeal, the appellant acknowledged in his evidence, as did his defence counsel in her closing address, that Mr. Bajkor was killed by one of the three remaining bullets fired at Mr. Beals.
[28] The Crown challenged the appellant’s evidence at trial. It contended that the appellant fired five times, each with the intention of killing Mr. Beals, one of which ended up accidentally killing Mr. Bajkor.
[29] In his factum, the appellant describes two theories about when the fatal shot was fired. Neither theory was advanced at trial. On the first theory, one of the two warning shots fired into the air may have killed Mr. Bajkor. On this scenario, the appellant would have lacked any murderous intent because, according to his own evidence, he merely meant to frighten Mr. Beals at the time.
[30] The second theory is that Mr. Bajkor may have been shot by a bullet that was fired after Mr. Beals had already entered the house. No shots were fired into the house after Mr. Beals was inside. As the theory goes, the appellant may have fired these bullets in celebration or as an expression of triumph after shooting Mr. Beals. Consequently, these bullets would have been fired without any murderous intent. Although this scenario is completely inconsistent with the appellant’s testimony at trial, it is said to be partly supported by Mr. Beals’ police statement (which was admitted for the truth of its contents), in which he said that he heard more gunfire after he entered the house and closed the wooden door behind him. This scenario was not supported by other evidence.
[31] As noted above, neither of these theories was advanced at trial. In fact, they are inconsistent with the evidence at trial. The appellant testified that the two bullets shot into the air “didn’t hit anybody”. In terms of the other three bullets, the appellant agreed with the suggestion: “[o]ne of them ends up in Mr. Bajkor, right?”
[32] Further, in her closing address, defence counsel summarized the defence position as follows:
Second, and this is probably clear by now, there is one thing that we do all agree on, and that is Mr. Collins fired the shots that killed Mr. Bajkor and wounded Mr. Beals. The questions that you will have to decide are why he did so and what was in his mind when he did, both in the time leading up to the shooting and when he actually fired the shots. Mr. Collins told you that he fired the final three shots in self-defence. Those are the shots that wounded Mr. Beals and killed Mr. Bajkor. [Emphasis added.]
[33] It is not appropriate for this court to measure the trial judge’s instructions to the jury based on theories that were not advanced at trial. There was no air of reality to either of these scenarios. Accordingly, I address the sufficiency of the trial judge’s instructions based on the manner in which this case was presented at trial.
(b) Murder and Contemporaneity
[34] In the vast majority of murder cases, the route to liability turns on the application of s. 229(a) of the Criminal Code. [^2] In this case, the Crown relied on s. 229(b). These provisions, with the common elements underscored, read as follows:
229 Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being. [Emphasis added.]
Section 229(b) applies when the victim is killed by “accident” (the allegation here), or by “mistake” (i.e., a case of mistaken identity).
[35] Section 229(b) is sometimes referred to as the “transferred intent” provision. A more apt expression might be the “unintended victim” provision. As noted in David Watt, Watt’s Manual of Criminal Jury Instructions, 2023 (Toronto: Thomson Reuters, 2023), at p. 720:
In all material respects, save one, the definitions of murder in ss. 229(a) and (b) are identical. Where s. 229(b) differs is that it involves two victims: one intended, the other actual. Under s. 229(a), the intended and actual victim are one and the same. Under s. 229(b), the intended and actual victims are different.
[36] These provisions must be applied in accordance with the common law principle that the fault requirements for criminal offences – the actus reus and the mens rea – be concurrent. In R. v. Cooper, [1993] 1 S.C.R. 146, also a murder case, Cory J. said, at p. 157: “There is, then, the classic rule that at some point the actus reus and the mens rea or intent must coincide.” See also R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at p. 146; R. v. Brown, 2022 SCC 18, 412 C.C.C. (3d) 427, at paras. 106-107; and R. v. Monckton, 2017 ONCA 450, 349 C.C.C. (3d) 91, at para. 75. This is sometimes referred to as the “simultaneous principle” or the “contemporaneity principle”: Kent Roach, Criminal Law, 8th ed. (Toronto: Irwin Law, 2022), at p. 123.
[37] This doctrine applies to murders committed under s. 229(a) of the Criminal Code, as in Cooper, [^3] and to murders committed under s. 229(b): R. v. Droste (No. 2) (1982), 34 O.R. (2d) 588 (Ont. C.A.), at pp. 592-593, aff’d 1984 68 (SCC), [1984] 1 S.C.R. 208. Thus, to establish liability under s. 229(b), the Crown must prove that the accused person had a murderous intent when they mistakenly or accidentally killed the unintended victim.
[38] The appellant insists that the Crown was required to prove that the appellant possessed a murderous intent to kill Mr. Beals at the very moment that he shot the bullet that tragically killed Mr. Bajkor. The Crown submits that, as long as the appellant had the requisite intent at some point during the brief transaction that resulted in five shots being fired in rapid succession, this would suffice.
[39] I accept the Crown’s submission. As Professor Don Stuart said in Canadian Criminal Law – a Treatise, 8th ed. (Toronto: Thomson Reuters, 2020), at p. 411: “It would be pedantic and ludicrous to insist that criminal responsibility can only arise if conduct is commenced at exactly the same time as the formation of a state of mind.” That the law does not require such exactitude is borne out by the cases.
[40] In Cooper, relying on the famous case of Fagan v. Metropolitan Police Commissioner, [1968] 3 All E.R. 442 (Q.B.), Cory J. said the following: “Yet, it is not always necessary for the guilty act and the intent to be completely concurrent. …The determination of whether the guilty mind or mens rea coincides with the wrongful act will depend to a large extent upon the nature of the act”: at p. 157. Cory J. further held that, if a sequence of acts form part of the same transaction, and if the requisite intent coincides “at any time” with the sequence of acts, this would be sufficient for contemporaneity purposes: at p. 158. As Kasirer J. observed in Brown, at para. 107, the contemporaneity principle is “applied flexibly.”
[41] Cooper strangled his victim to death. The evidence was that it would have taken between 30 seconds and 2 minutes of sustained pressure to end her life. Cooper claimed to have blacked out at some before the victim died. Cory J. observed, at p. 159: “It was sufficient that the intent and the act of strangulation coincided at some point. It was not necessary that the requisite intent continue throughout the entire two minutes required to cause the death of the victim.”
[42] The appellant submits that the more expansive approach endorsed in Cooper – the co-existence of mens rea and actus reus at some point during a single transaction of wrongful acts – is inapplicable to s. 229(b) of the Criminal Code because there is more than one victim (i.e., the intended victim and the actual victim). Consequently, the Crown is required to prove that the appellant had the intent to kill Mr. Beals at the very moment he fired the bullet that killed Mr. Bajkor. As counsel put it – intent follows the bullet.
[43] I do not accept this submission. There is no basis in law to draw this artificial distinction. There is no difference in the wording of ss. 229(a) and 229(b) that would signal that a differential approach is required. The appellant’s position is supported by no authority. In any event, as demonstrated below, the trial judge’s instructions on this issue adhered to a narrower path, requiring that the jury be satisfied that the appellant had a murderous intent trained on Mr. Beals when he accidentally killed Mr. Bajkor.
(c) The charge to the jury
[44] In this case, the contemporaneity issue was not addressed during the pre-charge conference. It was not an issue at trial because the appellant testified, and defence counsel conceded, that Mr. Bajkor was killed by one of the bullets intended for Mr. Beals. Nonetheless, the trial judge’s instructions read as requiring a very strict application of the contemporaneity principle.
[45] The trial judge instructed the jury that the Crown was required to prove that the appellant had the requisite intent “at the time” he killed Mr. Bajkor. More specifically, the trial judge instructed the jury that, in order to find the appellant guilty of murdering Mr. Bajkor, the Crown had to prove beyond a reasonable doubt that (a) the appellant had the state of mind required for the murder of Mr. Beals; and (b) the appellant killed Mr. Bajkor by accident or mistake, when he had the state of mind. As the trial judge said:
Therefore, for question three, there is two parts, as you will see in my charge. The first part: if you are not satisfied beyond a reasonable doubt that the accused had one of the states of mind required for murder, you must find him not guilty of murder, but you should find, record and return a verdict of guilty of manslaughter …
On the other hand, if you are satisfied beyond a reasonable doubt that the accused had one of the states of mind for murder, and you are satisfied beyond a reasonable doubt that the Crown has disproved the defence of self-defence, then you must go on to the next question subset. It is not in the decision tree. Just listen carefully. It is a very short instruction.
Did Collins kill Bajkor by accident or mistake when he had the state of mind required for the murder of Beals? So, if you have answered that you are satisfied that he had one of the states of mind for murder, that is the next question.
To prove this essential element, Crown counsel must satisfy you beyond a reasonable doubt that, when he killed Bajkor, Collins had the state of mind required for murder of Beals. In other words, Crown counsel has to prove that Collins was carrying out his intention to commit murder on Beals when, by accident or mistake, he killed Bajkor. In essence, he killed the wrong person. [Emphasis added.]
[46] In another part of his charge, after reviewing some of the evidence that related to this issue, the trial judge gave the following instruction which tended to focus the jury on the appellant’s state of mind at the moment in time when Mr. Bajkor was shot:
You should consider all of this evidence, but be clear, in doing so, that as the events unfolded that night, even during the event itself, Collins’ state of mind may have changed. It may have been affected or informed by those events that unfolded. In other words, the accused’s state of mind may have been one thing leading up to the event or the day in question when he first confronted Beals. It may have been different as the events unfolded. Or it may have stayed the same. It may have changed as the accused arrived at the 16 Milton Avenue residence. Or it may not have period it is for you to decide, based on your assessment of all of the evidence. The important question is whether the accused had one of the states of mind for murder at the time he did the unlawful act that he intended to do towards Beals that caused Mr. Bajkor’s death. [Emphasis added.]
[47] This package of instructions was correct. There was no objection before or after they were delivered. It is true that the trial judge did not instruct the jury on this issue by parsing the evidence in a bullet-by-bullet manner. But he was not asked to do so, presumably because it made no difference to the appellant’s principal submission that he was acting in self-defence.
[48] The appellant also takes issue with the trial judge’s further instruction given immediately after the above-quoted passage at para. 45 above. He submits that the trial judge essentially directed the jury to find that the appellant had the requisite state of mind at the time he killed Mr. Bajkor. The trial judge said:
On the other hand, if you are satisfied beyond a reasonable doubt that the accused had one of the states of mind for murder, and you are satisfied beyond a reasonable doubt that the Crown has disproved the defence of self-defence, then you must go to the next question subset. It is not in the decision tree. Just listen carefully. It is a very short instruction.
Did Collins kill Bajkor by accident or mistake when he had the state of mind required for the murder of Beals? If you have answered that you are satisfied that he had one of the states of mind for murder, that is the next question.
To prove this essential element, Crown counsel must satisfy you beyond a reasonable doubt that, when he killed Bajkor, Collins had the state of mind required for [the] murder of Beals. In other words, Crown counsel has to prove that Collins was carrying out his intention to commit murder on Beals when, by accident or mistake, he killed Bajkor. In essence, he killed the wrong person.
You should have no difficulty in finding that the Crown has established this essential element for murder beyond a reasonable doubt. You may safely proceed to the next question. So, as you can see, it is a subset, but the main principal question has already been addressed. [Emphasis added.]
[49] I do not read this portion of the trial judge’s charge in the same way as the appellant. The trial judge did not take the issue of intent away from the jury. In this passage, the trial judge was not addressing the jury on the intents for murder in s. 229(b) of the Criminal Code; instead, he was referring to the contemporaneity issue. This instruction was responsive to the position of defence counsel. Based on the appellant’s evidence, defence counsel conceded that Mr. Bajkor was killed by one of the three bullets that the appellant fired directly at Mr. Beals. The bullet that killed Mr. Bajkor could have been fired anywhere in this three-bullet sequence. Although intent was a live issue at trial, contemporaneity was not. The trial judge’s comments on this narrow issue were appropriate.
[50] I would reject this ground of appeal.
(2) The instruction on the mens rea for attempted murder
[51] The appellant submits that the trial judge erred in his instructions on the mens rea for attempted murder by failing to tell the jury that nothing less than a specific intent to kill Mr. Beals would suffice. He also submits that the trial judge essentially directed the jury to find the appellant guilty of attempted murder of Mr. Beals if they found him guilty of the first or second degree murder of Mr. Bajkor. The Crown submits that the trial judge did not err, but if there was an error, the proviso in s. 683(1)(b)(iii) of the Criminal Code should apply.
[52] In my view, the trial judge did err, and this is not an appropriate case in which to apply the proviso.
[53] The trial judge’s entire instructions on attempted murder are contained in the following two paragraphs:
Let me turn for a few moments to attempted murder; count two is attempted murder. Your task is relatively simple with respect to the second count. Listen carefully. There is no decision tree for you – you will be thankful for that. With respect to count two, if you have found Collins either not guilty of any offence in count one or guilty of manslaughter, then you would have found that Collins did not intend to kill Beals or he acted in self-defence. Therefore, you must find, record and return a verdict of not guilty of attempted murder of Beals. Your deliberations would be over.
If you have found Collins guilty of either second-degree murder or first-degree murder, then you would have been satisfied beyond a reasonable doubt that Collins intended to kill Beals and you would have been satisfied beyond a reasonable doubt that the Crown has disproved the defence of self-defence, then you must find, record and return a verdict of guilty of the attempted murder of Beals. Your deliberations end. [Emphasis Added.]
[54] It has long been settled law in Canada that the mens rea for attempted murder is a specific intention to kill: see The Queen v. Ancio, [1984] 1 S.C.R. 225, at pp. 250-251; and R. v. Cunningham, 2023 ONCA 36, at para. 36. This corresponds with the direct intent for murder in s. 229(b) – “meaning to cause death to a human being”. However, the secondary or oblique intent in s. 229(a)(ii),(b) – “meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not” – is not an available pathway to a conviction for attempted murder: see R. v. Boone, 2019 ONCA 652, 56 C.R. (7th) 432, at para. 51; R. v. Tyrell, 2021 ONCA 15, at para. 14; and R. v. Weng, 2022 BCCA 332, 418 C.C.C. (3d) 338, at para. 82. In short, nothing but a specific intent to kill will suffice.
[55] As already noted above, the trial judge properly instructed the jury on the mental element of second degree murder (s. 229). On numerous occasions he mentioned both states of mind: an intention to cause death or an intention to cause serious bodily harm that the person knew was likely to cause death and was reckless whether the person died or not. These references tracked the language of s. 229(b). He correctly instructed the jury that they need not be unanimous on which of the two states of mind of mind was proved, so long as all jurors were satisfied beyond a reasonable doubt that one of them had been proved.
[56] In other parts of his charge the trial judge used expressions such as the “state of mind”, “one of the states of mind”, and “either state of mind” for murder, avoiding repetition of the precise wording of the Criminal Code. There was nothing wrong with the trial judge’s use of these expressions; they were appropriate and sufficient to the context in which they were used.
[57] However, the trial judge’s use of these more generalized descriptions of the mens rea for murder required a more cautious approach when he instructed the jury on the mens rea for attempted murder. It was not correct to instruct the jury that, if they were satisfied that the appellant committed either first degree or second degree murder, “then you would have been satisfied beyond a reasonable doubt that Collins intended to kill Beals…[and]…you must find, record and return a verdict of guilty of attempted murder.” Given the numerous references to both intents for murder in s. 229(b), some of the jurors may have thought it was sufficient to convict the appellant of attempted murder based on something less than a specific intent to kill.
[58] This deficiency in an earlier draft of the charge was raised by the trial Crown at the pre-charge conference. She said:
[T]he law is that you only can have the one intent, the specific intent to kill in attempt murder. So, if some of [the jury] think it’s second-degree based on the grievous bodily – like, intent to cause grievous, grievous bodily harm that you know will kill, that, that’s not – it doesn’t meet the requirement for attempt murder.
[59] The trial Crown suggested that the proposed instruction be amended to read: “[I]f you have found [the appellant] guilty of either second-degree murder or first-degree murder, based on his intent to kill, … then you must find, record and return a verdict of guilty of the attempted murder of Beals” (emphasis added). Defence counsel agreed. The trial judge agreed to the proposed change, but it did not make its way into his final instructions.
[60] On appeal, the Crown relies on long-standing authority that requires appellate courts adopt a functional approach to reviewing jury instructions: see R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523 at paras. 30-31; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39. The Crown submits that “[t]he question is not whether the instruction was perfect but whether it adequately prepared the jury for their adjudicative task. What matters is the general sense in which the words used must have conveyed, in all probability, to the mind of the jury.”
[61] This approach to review is not appropriate in the circumstances of this case. The jury should not have been left in any doubt about the mens rea for attempted murder. They had been told that they need not be unanimous on the two intents for murder, as long as they were all in agreement that one of the two states of mind had been proved. Moreover, for jurors, the differences between the mens rea for murder and the mens rea for attempted murder may well be counter-intuitive in that the mens rea for attempted murder is more exacting than it is for murder. This needed to be made explicit.
[62] For these reasons, the jury ought to have been instructed along the lines recommended in David Watt, Watt’s Manual of Jury Instructions, 2023 (Toronto: Thomson Reuters Canada Limited, 2023): “Attempted murder requires proof of a particular state of mind. Crown counsel must satisfy you beyond a reasonable doubt that when [the accused] did the things that amount to an attempt, [the accused] meant to kill [the victim]. Nothing less will do”: Final 239. In his commentary on this instruction, the author gives the following advice, at p. 796:
Where the indictment includes a count or counts of murder, in addition to one or more counts of attempted murder, it may be advisable to distinguish between the mental elements of each crime. Language like the following may make the point:
Unlike murder, where proof of either of two states of mind is sufficient, there is only one state of mind that will do for attempted murder: an intention to kill. [^4]
An instruction along these lines was required in this case. In my respectful view, without it, the charge was deficient.
[63] I would not apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. The instruction was deficient on the mens rea requirement for one of the most serious offences in Canadian law. Precision was required.
[64] I acknowledge that there was a formidable body of evidence that pointed to the appellant’s intent to kill Mr. Beals. He expressed this intention in his earlier fight with Mr. Beals. He called for back-up. The appellant went after Mr. Beals with a gun and discharged five bullets in rapid succession. However, having instructed the jury on both intents for murder on multiple occasions, I am unable to conclude that, had the jury been properly instructed on the attempted murder count, all jurors would have inevitably reached the same conclusion. It is clear that the jury rejected the appellant’s claim of self-defence. But it is unclear whether they rejected the appellant’s warning shot scenario which may have raised a reasonable doubt about whether the appellant actually intended to kill Mr. Beals. Accordingly, the verdict on the attempted murder count must be set aside.
[65] At the hearing of the appeal, counsel for both the appellant and the respondent agreed that, if this ground of appeal were to succeed, instead of ordering a new trial on the attempted murder count, a conviction for the lesser and included offence of aggravated assault in s. 268 should be substituted. This is authorized by ss. 686(1)(b)(i) and (3) of the Criminal Code. I agree that this is the appropriate course to take. See the remarkably similar situation in Weng, at para. 88, where the court upheld a conviction under s. 229(b), set aside an attempted murder conviction, and substituted a conviction for aggravated assault.
[66] However, this does not end the matter. The appellant received a concurrent life sentence for attempted murder; aggravated assault carries a maximum sentence of 14 years’ imprisonment. Accordingly, I would invite the parties to make written submissions on the appropriate sentence to be imposed on this count.
(3) Did the trial judge err in refusing to declare a mistrial?
[67] The appellant submits that the trial judge erred in failing to grant a mistrial in response to the evidence of Mr. Tynes who said that the appellant had been convicted at the first trial. I would not accept this submission.
(a) Background
[68] Near the end of its case, the Crown called Mr. Tynes as a witness. During his examination in-chief, Mr. Tynes thrice referred to the fact that the appellant had been convicted of an offence at his previous trial. The first instance was in direct response to a question asked by the Crown when Mr. Tynes explained the circumstances surrounding his plea to manslaughter:
A. I'm right here today. I pled, I got a guilty, I made a guilty plea deal and I'm here today, right? Some people got convicted. My lawyer came to me after, told me there was deal, a guilty plea deal after somebody got convicted.
Q. Who got convicted?
A. Shaquille Collins and Christopher Newton. And my lawyer told me that....
[69] Immediately after this answer, the trial judge provided the following corrective instruction:
I don't want to get into a lawyer conversation. Ladies and gentlemen, whether or not anyone else got convicted has no bearing in your decision in this case. You will harken to the evidence in this case and disregard any reference to any other proceeding or trial with any other conclusions that arrived in that proceeding.
[70] At the next recess, defence counsel said that she was “extraordinarily concerned” that the Crown had elicited this information, but was unsure of how to remedy the situation. Mr. Tynes’ evidence continued. On at least two further instances, Mr. Tynes volunteered that the appellant had been convicted before.
[71] Due to these answers, and because of a suggestion from the Crown to Mr. Tynes that he was lying because he was afraid of the appellant, defence counsel brought a mistrial application.
[72] The trial judge refused to declare a mistrial. He provided thorough reasons for this decision. In assessing prejudice, he observed that there was no mention by Mr. Tynes of whether the appellant had been convicted of first degree murder, second degree murder, or manslaughter. Moreover, the jury had already been told, including by defence counsel, that this was a retrial. Ultimately, the trial judge found that a “full and direct” instruction to the jury would suffice:
Neither, here in this case, finding that the information exposed to the jury results in the tainting of a trial to the extent that a reasonable possibility that Mr. Collins’ rights to a fair trial is precluded or was precluded, nor a fatal wounding of the trial process, I must say that this is a close call, in my view, but the application for a mistrial is dismissed. A full and direct instruction to the jury is and will be required, and I will administer it accordingly.
[73] Following this ruling, but before Mr. Tynes’ testimony continued, the trial judge strongly admonished him by saying, “There is one thing I am going to tell you now that I do not want to hear out of your mouth, and that is with respect to any convictions of any of your co-accused in this case.” Mr. Tynes pointed out that he had not been previously told by the trial judge not to mention these convictions and that he would not have mentioned if he had been. The trial judge warned Mr. Tynes that he faced a contempt finding and imprisonment if he disobeyed his direction. There were no further problems with Mr. Tynes’ evidence.
[74] When the jury returned to the courtroom, the trial judge provided the following remedial instruction:
Before we continue with the evidence, I have an instruction for you. I ask that you pay very close attention to the following instruction. As you have surmised from the evidence, this case has been tried before. During the course of his testimony, Mr. Tynes volunteered that Mr. Collins was convicted of some offence. That was entirely improper and not relevant to this testimony or this trial. Nonetheless, I am advising you now that the Ontario Court of Appeal found legal errors in the previous trial and this and Mr. Collins’ conviction was overturned.
Do not speculate about what happened during or at the end of that trial or why there is another trial or why the Court of Appeal overturned the conviction. Do not speculate. As I instructed you earlier, I repeat now, what happened at the first trial or in the Court of Appeal has nothing to do with your decision in this trial, absolutely nothing. At the end of this trial, you must decide this case on the evidence that you see and hear given in this very courtroom during this trial and according to the legal rules that will govern your deliberation and decision. Nothing else matters and that includes what happened at any prior trial.
Ladies and gentlemen, there is a good reason why we are all here today, this week, last week, and next week. This is square one. With the presumption of innocence. Proof beyond a reasonable doubt. Your whole understanding and consideration of all of the admissible evidence you will hear in this trial and based on the relevant legal principles that I have expressed and all of my mid-trial rulings, including this one, and later in my final instruction to you, I am confident that you will all abide by your oath to well and truly try this case.
As jurors you have a very important role. On the one hand, it is of fundamental importance that no person should ever be found guilty of a criminal offence which they did not commit. On the other hand, you are the guardians of the legal rights of the community in which you live. I am confident that you will decide this case fairly, thoughtfully, and judiciously as to whether Crown counsel has proven the guilt of Mr. Collins beyond a reasonable doubt with respect to all the factors I mentioned earlier, the evidence you hear and my instructions to you. Thank you for your consideration of these instructions.
[75] The trial judge provided another stern direction to the jury about this aspect of Mr. Tynes’ evidence in his final instructions.
[76] The appellant submits that the evidence given by Mr. Tynes was very damaging to the fairness of the trial. It was made more serious because the Crown intentionally elicited Mr. Tynes’ initial response. Further, the appellant submits that the trial judge gave excessive and unrealistic weight to the restorative powers of a cautionary instruction and downplayed the risk of jury misuse of this evidence.
[77] The Crown submits that Mr. Tynes evidence was damaging, triggered by the Crown’s mere “slip”. But the damage was nullified by the trial judge’s response to the situation – an immediate instruction, followed by a stern admonishment of Mr. Tynes, another cautionary instruction before Mr. Tynes’ evidence continued, and a strong warning in his final instructions.
(b) Analysis
[78] A mistrial is a discretionary remedy of last resort, and the trial judge is ideally situated to make the assessment of whether a lesser remedy will be efficacious in addressing any prejudice that arises at trial: see R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 36; R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 58; and R. v. Anderson, 2018 ONCA 1002, at para. 15.
[79] The trial judge’s reasons reflect an appreciation of the governing principles and how they were to be applied in the circumstances of this case. I see no basis for disturbing his assessment of the situation and the path chosen to correct it.
[80] The trial judge was aware of the seriousness of the situation. He considered this to be a “close call”. Whether the Crown’s question – “who got convicted?” – was intentional as opposed to a mere slip (something that is impossible to know), it was a serious misstep. However, it is only one factor to be considered in the analysis. The multiple steps taken by the trial judge sufficiently defused any prejudice.
[81] The appellant places great weight on R. v. Pierre, [1996] B.C.J. No. 2849 (B.C.S.C.). Pierre was charged with sexual offences against young boys. He was convicted at trial, but the Court of Appeal ordered a new trial. On the evening before Pierre was to open his case, media coverage revealed that this was a re-trial of a case in which the accused had been found guilty at his first trial. The coverage also mentioned that there had been a change of venue for the re-trial because of expressed concern about prejudicial publicity in the original jurisdiction. After reviewing many authorities, the trial judge, Cohen J., held that he was not convinced that a caution to the jury could cure the prejudice created by the media coverage. He declared a mistrial.
[82] The appellant submits that the trial judge should have placed more weight on Pierre. The trial judge considered Pierre. But mistrial applications are very fact-specific, based on the nature of the triggering events, all within the dynamics of the trial in which they occur. This is why mistrial rulings of fellow trial judges will often be of limited value to a trial judge exercising their discretion in deciding whether to grant a mistrial.
[83] The trial judge’s ruling was well-reasoned. He subsequently did what he said he would do, and that was to provide strong warnings to the jury to ignore what may or may not have happened at the previous trial. I see no error. In my view, the trial judge restored trial fairness in the steps that he took in a very timely manner.
[84] I would dismiss this ground of appeal.
E. Disposition
[85] I would dismiss the appeal from conviction for the first degree murder of Mr. Bajkor. I would dismiss the appeal from the conviction on the attempted murder count, but substitute a conviction for the lesser and included offence of aggravated assault. The parties are invited to exchange and then file with the court written submissions of no longer than 5 pages to address the appropriate sentence to be imposed for aggravated assault. This should be completed within 30 days of the release of this decision.
Released: June 6, 2023 “G.T.T.” “Gary Trotter J.A.” “I agree. A. Harvison Young J.A.” “I agree. L. Favreau J.A.”
Footnotes
[^1]: As discussed later in these reasons, this is an appeal from a re-trial ordered by this court. [^2]: The case for first degree murder was based on s. 231(2) that provides that murder is first degree murder when it is “planned and deliberate”. [^3]: At the time Cooper was argued, the provision was s. 212(a) of the Criminal Code, which is identical to s. 229(a). [^4]: An earlier version of this book, one that was current at the time of the trial, contains this same suggestion, and the same model charge: David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters Canada Limited, 2015), at p. 753.
