Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240411 DOCKET: C68647

Fairburn A.C.J.O., Doherty and Benotto JJ.A.

BETWEEN

His Majesty the King Respondent

and

Elias Gibb Appellant

Counsel: R. Craig Bottomley, Janelle Belton and Sebastian Becker, for the appellant Karen Papadopoulos, Emily Marrocco and Kevin Rawluk, for the respondent

Heard: February 12-14, 2024

On appeal from the conviction entered by Justice Irving W. André of the Superior Court of Justice, sitting with a jury, on June 26, 2019.

By the Court:

OVERVIEW

[1] On June 29, 2017, the appellant shot at Raimzhan Tokhtabayev (“the victim”) five times and hit him four times, all at close range. The fatal shot penetrated the victim’s abdomen.

[2] The appellant was charged with second degree murder, while his friend, Christopher Anderson, was charged with accessory after the fact to murder. At the outset of trial, the appellant pleaded guilty to manslaughter, but the Crown refused that plea and continued with the prosecution for second degree murder. The jury returned a verdict of guilty as charged against the appellant, and acquitted Mr. Anderson.

[3] The appellant raises three grounds of appeal against conviction:

(1) Section 232(2) of the Criminal Code, the provocation provision, is contrary to s. 7 of the Charter and not saved by s. 1;

(2) The trial judge erred by failing to give the jury a free-standing instruction about the impact of intoxication on the state of mind for murder; and

(3) The trial judge erred by combining both accused within a single W.D. instruction: R. v. W.(D.), [1991] 1 S.C.R. 742.

[4] This appeal was heard at the same time as two others: R. v. Brar, 2024 ONCA 254, and R. v. Larocque-Laplante, 2024 ONCA 256. We are releasing our decisions in all three cases simultaneously. The issue pertaining to the constitutionality of s. 232(2) is addressed in the Brar decision. For the reasons set out in Brar, the constitutional ground of appeal in this case is dismissed.

[5] These reasons focus on the second and third issues raised by the appellant and explain why this appeal is dismissed.

Background Facts

[6] The appellant spent the evening with a group of friends. He testified that during the hours leading up to the shooting, he consumed alcohol and used some drugs.

[7] The appellant and his friends eventually ended up at a strip club at around 1:00 a.m. Also present at the club were the soon-to-be deceased and his two friends. The groups did not know each other.

[8] At around 2:30 a.m., a conflict broke out between the two groups, most of which was caught on video surveillance. The Crown called most of the appellant’s friends and the deceased’s friends as witnesses at trial. The appellant also testified, as did his co-accused, Mr. Anderson.

[9] The jury heard testimony about the fact that the victim was disrespectful to female members of the appellant’s group, which triggered a verbal exchange between the men once outside of the club. This led to a physical altercation, mainly involving the appellant’s co-accused and others. The testimony differed somewhat as to whether, during that altercation, the appellant endeavoured to intervene to stop the fight or endeavoured to intervene to enter the fray. Regardless, it was not in dispute at trial that, whatever the appellant was trying to do, he removed a handgun from his waistband area and showed it to others. Indeed, the gun is visible on video just a few minutes before the shooting. The appellant said that he showed his gun in an effort to stop the commotion.

[10] The physical altercation ended by 2:33 a.m. The end was marked by, among other things, the victim and Mr. Anderson shaking hands. The appellant then proceeded toward Mr. Anderson’s car, but instead of entering the vehicle, he started walking back toward the club. Mr. Anderson then drove toward where the appellant was standing at the side of the club. The victim is then seen approaching the appellant, although anything they may have said to one another is not caught on the surveillance tape. Given the angle of the camera, it is also difficult to ascertain what the victim was doing, if anything.

[11] Moments later, the surveillance video shows flashes of light, produced by the gunshots. The victim then staggers backwards and falls to the ground.

[12] The appellant testified that he told the victim to leave when the victim approached him. The appellant claimed that the victim then said “don’t tell me what to do” and called the appellant a derogatory term. The appellant claimed that the victim then reached in toward the appellant’s midsection, where he had his gun secured, as well as an expensive piece of jewelry. At that point, the appellant says that he just “lost it”, pulled out the gun and started firing at the victim. Four bullets hit the victim.

[13] The appellant then opened Mr. Anderson’s car door and entered. The car can be seen on the surveillance video driving around the deceased’s body and away. Both the Mr. Anderson and the appellant agree that once he entered the car, the appellant said to Mr. Anderson: “go, go, go.”

[14] The deceased’s friends disagreed with much of the appellant’s evidence, denying that the deceased referred to the appellant by a derogatory term or that the appellant was ever trying to calm the earlier dispute. The appellant’s suggestion that the victim reached towards his midsection before the shooting was characterized as “nonsense” by one of the victim’s friends.

[15] The appellant acknowledged at trial that not long after the shooting, he wrapped the gun in his shirt and threw it into a dumpster. The gun has never been recovered.

No Obligation to Instruct on Intoxication

Overview

[16] The appellant maintains that the trial judge should have given the jury a free-standing instruction on the relevance of the evidence of the appellant’s intoxication to proof of the mens rea required for murder under s. 229(a): R. v. Robinson, [1996] 1 S.C.R. 683, at para. 48. While the appellant does not seek refuge in a claim of automatism arising from intoxication, he says there was an air of reality to the suggestion that his consumption of alcohol and drugs directly impacted the formation of an intention to kill, such that the jury should have had a reasonable doubt about whether he formed the specific intention for murder: R. v. Tatton, [2015] 2 S.C.R. 574, at paras. 26-29; R. v. Brown, 472 D.L.R. (4th) 459, at para. 43. In these circumstances, he claims that the trial judge erred by failing to give the jury a specific instruction that the evidence of intoxication should be taken into account when considering the mens rea for murder.

[17] This ground of appeal cannot succeed.

The Evidence of Intoxication

[18] The appellant testified that he drank Hennessy in the hours leading up to the shooting. Some of his friends also testified about his consumption of alcohol during that time. The appellant was described by one witness as one of the main consumers of at least one of the bottles of Hennessy. While at the club itself, the appellant testified that he consumed around another five to six glasses of Hennessey.

[19] The appellant also testified that he smoked marijuana and took two Xanax tablets in the hours leading up to the shooting. The appellant described himself as being “intoxicated” and said that the drugs “amplified” his intoxicated condition. At no time did he suggest that his degree of intoxication rendered him unable to appreciate what he was doing. Rather, he specifically pinned his loss of control – the fact that he “lost it” – on a discrete act that he perceived, processed, and was able to describe in the witness stand.

[20] In addition, despite the evidence of intoxication, there was video surveillance evidence that captured the appellant’s actions both inside and outside of the club. The trial Crown took the position that the video surveillance demonstrated that the appellant’s actions were controlled, and not those of a person who was intoxicated. As well, one of the appellant’s friends described his demeanour as “normal”, without any slurred speech, stumbling, loud speaking, or erratic behaviour.

The Appellant Did Not Want Intoxication Left with the Jury

[21] The appellant maintains that the factual underpinnings for intoxication were present in this case, meaning that the air of reality threshold was crossed: R. v. Cinous, [2002] 2 S.C.R. 3, at paras. 53-54, 82.

[22] In our view, even if the weak evidence of intoxication gave rise to an air of reality in this case, it matters not. As we will explain, the trial judge was under no obligation to give a free-standing instruction on intoxication given that the appellant specifically asked that this not be done, and given that had the trial judge done so, it likely would have undermined the appellant’s primary position, that he was provoked into killing the victim.

[23] During pre-charge discussions, the trial Crown was the party that raised the possibility that the trial judge may wish to give a charge about intoxication:

[Crown]: [I]t kind of struck me as I was preparing the closing about, when I was addressing the defence of intoxication, whether there needs to be something more….

[24] In response to the Crown’s comment, the trial judge expressed the view that he did not think that intoxication was being raised, to which the appellant’s trial counsel replied: “[t]he evidence doesn’t support it.” While the defence agreed that there was “relevance to intoxication”, its relevance was inextricably linked to the subject of provocation.

[25] That defence position played out in both the defence opening and closing to the jury. In the closing in particular, the defence reinforced with the jury that the “real issue” for their determination was the partial defence of provocation. Although the defence did not concede the state of mind for murder, the defence never suggested that the jury should have a doubt about the intention for murder arising from intoxication, standing on its own. Rather, the defence tied the appellant’s degree of intoxication to the “real issue” of provocation and whether the appellant’s condition from the intoxicants may have impacted the suddenness with which he acted when considering the third element of provocation.

[26] The jury charge on provocation largely aligned with the defence approach to this issue. The jury instruction on the third element of provocation was as follows:

Third, has the crown proved beyond a reasonable doubt that when [the appellant] killed [the deceased] he had not lost the power of self control as a result of [the deceased’s] conduct?

Review all the circumstances and consider whether [the appellant] had actually lost his power of self-control when he killed [the deceased]. Here you must take into account all of [the appellant’s] personal characteristics and circumstances including such things as age, background, idiosyncrasies, temperament, mental state, and any consumption of alcohol or drugs.

[The appellant] testified that he ‘lost it’ when [the deceased] called him a derogatory term and reached towards his abdomen. In answering this question, you must take into account [the appellant’s] age, what transpired before in front of the club, the appellant’s testimony that he was scared, his testimony that he had earlier consumed Hennessy and had smoked marihuana. Consider also the video evidence of the shooting: the fact that [the appellant] appeared to have good motor skills earlier that evening and the fact that he quickly got into Mr. Anderson’s car and shouted to him ‘go, go, go!’ [Emphasis added.]

[27] In our view, the defence position at trial was an entirely tactical one. And, we would add, it was far from unreasonable. The fact is that there was a limited degree of evidence supporting the suggestion of intoxication in this case. While it may have crossed the air of reality threshold, the defence clearly did not want a free-standing instruction on intoxication and its intersection with the mens rea for murder. This was for good reason.

[28] The only real evidence of intoxication was evidence of consumption. As for any objective indicia of the appellant’s intoxication, it was absent from the record. The video and viva voce evidence belied the suggestion that the appellant was in anything but good control and acting deliberately throughout the evening, including in the minutes leading up to the shooting. In order to advance his partial defence of provocation, the appellant needed to be an accurate historian of the provoking act that caused him to shoot on the sudden. To this end, the appellant gave detailed evidence, portraying himself as exactly that: an accurate historian of the events. This would have been a difficult position to advance if he was also advancing a state of intoxication that stood at odds with forming the intention for murder.

[29] When considered against the factual backdrop of this case, the defence position was a strategic and considered one. The jury charge was tailored to the defence position taken at trial – a position advanced during extensive pre-trial discussions. Having taken that entirely reasonable position at trial, in an entirely borderline case for a free-standing intoxication instruction, and in circumstances where highlighting the instruction could have conflicted with what the appellant was advancing as the “real issue” for the jury’s consideration, we decline the appellant’s invitation to now find the jury charge inadequate on appeal: R. v. Calnen, [2019] 1 S.C.R. 301, at para. 67; R. v. Singh, 266 C.C.C. (3d) 466, at para. 56, leave to appeal refused, [2011] S.C.C.A. No. 48.

[30] In any event, this is not a case where the trial judge failed to instruct the jury on a defence that had an air of reality. Rather, this is a case where the trial judge is criticized on appeal for having not emphasized, in a free-standing instruction, how intoxication could have impacted the formation of an essential element of the offence. While it was not the subject of a free-standing instruction, the fact is that the trial judge got the job done. When the instructions are read as a whole, it is clear that the jury would have understood that they should consider the appellant’s degree of intoxication when deliberating on the state of mind for murder. In a rolled-up approach to the instruction, the trial judge made clear that “all of the evidence” should be considered when deliberating on the appellant’s state of mind. Indeed, as it related to the state of mind for murder, the jury was specifically directed to the section of the charge called “Review of the Evidence”, where there was an extensive summary of the evidence pertaining to alcohol and drug consumption.

[31] In our view, the jury charge did the job in this case. It allowed the jury to take the appellant’s intoxication into account when considering the state of mind for murder, all while ensuring that the defence position, with its primary emphasis on provocation, was not compromised by a separate, free-standing instruction on intoxication. There was no objection to the charge at trial because it is exactly the charge that the appellant asked for.

The W.(D.) Instruction

[32] As noted before, the appellant was tried alongside his friend, Christopher Anderson. Mr. Anderson was charged with accessory after the fact to murder.

[33] The trial judge gave what the appellant refers to as a “blended” W.D. instruction. He instructed the jury as follows:

Also, there are special considerations which you must keep in mind regarding the evidence of [the appellant] and Mr. Anderson.

First, if you believe [the appellant’s] and Mr. Anderson’s evidence that they did not commit the crime charged, you must find them not guilty of the offence charged.

Second, even if you do not believe [the appellant’s] and Mr. Anderson’s evidence, if it leaves you with a reasonable doubt about either – I have “his guilt” but, obviously, “the accused’s” guilt [you are] considering – you must find that accused not guilty of the crime charged.

Third, even if [the appellant’s] and Mr. Anderson’s evidence does not leave you with a reasonable doubt of their guilt, you may convict them or either of them only if the rest of the evidence that you do accept proves the guilt of the accused you are considering beyond a reasonable doubt. [Emphasis added.]

[34] The appellant argues that the first and second steps in the W.D. instruction erroneously left the jury with the impression that they could only acquit the appellant if they believed both his and Mr. Anderson’s evidence or had a reasonable doubt about his guilt arising from both of their evidence. This instruction is said to have placed too high a standard of proof on the defence given that the jury should have been told that they had to find the appellant not guilty of second degree murder, but guilty of manslaughter, if they believed his evidence alone or if his evidence alone raised a reasonable doubt.

[35] The appellant contends that it was fundamentally unfair for the appellant’s evidence to be tethered to how the jury approached his co-accused’s evidence. If the jury had been properly instructed, and the appellant had been treated as a silo within the first and second prongs of W.D., the appellant maintains that he may well have been acquitted of murder.

[36] We agree that the W.D. instruction was not perfect in this case, and the use of the conjunctive word “and” in the first and second prongs of W.D. was not ideal. Nevertheless, we are satisfied that when the jury charge is considered as a whole, and against the circumstances of this case, this jury had all the tools necessary to render a fair and just verdict: R. v. Abdullahi, 483 D.L.R. (4th) 1, at paras. 32-36, 44-46; Calnen, at paras. 8-9; R. v. Jaw, [2009] 3 S.C.R. 26, at para. 32.

[37] We start with the observation that the appellant and Mr. Anderson were charged with different offences that were alleged to occur one after the other: first the shooting, then the assistance in getting away. The jury was specifically instructed that separate verdicts had to be returned for each accused, that the verdicts need not be the same, and that each accused was “entitled to be treated separately on each charge.”

[38] In our view, read contextually, and considering the factual context for this trial, there is no possibility that the jury would have thought that if they believed the appellant’s evidence or if it raised a reasonable doubt in their minds, then they did not have to acquit him of murder. In light of the charge as a whole, and in light of the factual backdrop for this trial, it is simply common sense that this jury would have understood that they need not believe Mr. Anderson or have a doubt raised by his evidence before acquitting the appellant.

[39] This contextual view is fortified by the positions of the experienced lawyers at trial. The now-impugned W.D. instruction was specifically discussed during the pre-charge conference because Mr. Anderson was not originally referred to in that instruction. All agreed that he had to be included. After the instruction was amended, there was no complaint from anyone. This is because, read as a whole, and in its proper context, the instruction conveyed what was needed and the jury fully understood the task at hand.

Conclusion

[40] The appeal is dismissed.

Released: “April 11, 2024 JMF”

“Fairburn A.C.J.O.”

“Doherty J.A.”

“M.L. Benotto J.A.”