COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Hallman, 2025 ONCA 123
DATE: 2025-02-21
DOCKET: COA-22-CR-0390
Huscroft, Dawe and Pomerance JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Karl Hallman
Appellant
Jeff Marshman and Ingrid Grant, for the appellant
Baaba Forson, for the respondent
Heard: January 29, 2025
On appeal from the conviction entered by Justice Kelly A. Gorman of the Superior Court of Justice on November 11, 2021, sitting with a jury.
Pomerance J.A.:
[1] The appellant was convicted of the second-degree murder of Nicholas Baltzis. Mr. Baltzis died during a physical altercation between the two men at his residence. At trial, the appellant maintained that he acted in self-defence, but relied in the alternative on the partial defence of provocation. The trial judge instructed the jury on both defences.
[2] During their deliberations, the jury asked several questions about the provocation defence. The appellant argues that the trial judge’s answers to these questions were either non-responsive, potentially unclear, or incorrect. I agree with this submission. The jurors’ questions showed that they needed help to understand the legal concepts that they were to apply. They did not get the assistance that they needed. I would accordingly allow the appeal and order a new trial.
A. Factual BACKground
(1) The altercation
[3] The appellant and Mr. Baltzis had known each other for some time. On the day of the fatal altercation, the appellant went to the house where Mr. Baltzis was staying to help him clear it out. They both consumed alcohol and drugs, and at one point they posted a “selfie” photograph on social media showing them standing side-by-side together, both smiling.
[4] John Learn, a friend of Mr. Baltzis’s mother, testified at trial. He arrived at the house a few hours after the appellant and Mr. Baltzis took their selfie. He said that the appellant opened the front door, covered in blood. He saw Mr. Baltzis lying on the floor and asked “what the hell happened”, to which the appellant responded “we got in a fight and I had to stab him”. The appellant appeared to be angry. According to Mr. Learn, the appellant picked something up from the floor, and then stomped on Mr. Baltzis’s head “like a watermelon”. The deceased was not moving at the time. Mr. Learn called 911 and the appellant was arrested shortly thereafter as he was walking away from the house.
(2) The appellant’s statement to police
[5] At trial, the appellant relied on the content of his statement to police, which was put in evidence by the Crown. He explained that as the day progressed Mr. Baltzis “kept looking at me saying stupid stuff and asking me what my name was”, which made no sense because they had known each other for four years. The appellant described Mr. Baltzis’s words as “all mumble jumble”. He told the police that Mr. Baltzis “just kept getting rowdier and rowdier with me, to the point where he eventually just grabbed a knife and like held it to my throat”.
[6] The appellant said that when Mr. Baltzis put the knife to his throat, he “just lost it”. They fought over the knife and they both ended up on the floor. The appellant said that he punched Mr. Baltzis in the head and managed to wrestle the knife away, suffering a deep cut to his hand in the process. The appellant then stabbed the knife into Mr. Baltzis’s shoulder and bicep area, and continued to stab him, estimating that he stabbed Mr. Baltzis around 20 times. He then moved Mr. Baltzis’s body and began beating him with various objects, including a golf club and a cane.
(3) The deceased’s injuries
[7] The deceased suffered extensive injuries. His immediate cause of death was blood loss from 19 stab wounds to his chest, abdomen, face, and extremities. The stab wounds penetrated both of Mr. Baltzis’s lungs, his heart, his liver, and his eye. Mr. Baltzis also had a broken nose, multiple head injuries, and a perforation of the skull, but a forensic pathologist testified that these other injuries did not contribute his death.
B. The trial proceedings
(1) Closing addresses of counsel
[8] Both Crown and defence counsel focused their closing addresses on the issue of self-defence. The Crown did not dispute the appellant’s account that he and Mr. Baltzis had fought, but took the position that the appellant had not been acting in self-defence when he inflicted the fatal stab wounds and then continued to beat Mr. Baltzis.
[9] Crown counsel said very little about the alternative partial defence of provocation. He told the jury that the trial judge “will charge you on what provocation is. I’m not going anywhere near it”. The Crown did go on to make some passing reference to provocation, arguing that the jury should not have a reasonable doubt on this basis. At one point he stated, incorrectly, “[y]ou’re going to be told about provocation, essentially it deals with intent”.
[10] The appellant’s trial counsel argued in his closing address that if the jurors rejected the appellant’s main defence of self-defence, they should accept his alternative defence of provocation. He told the jury that the appellant was provoked by Mr. Baltzis holding the knife to his throat and fighting with him, which happened suddenly and caused the appellant to lose his self-control.
(2) The jury charge and decision tree on provocation
[11] The trial judge provided the jury with decision trees, including a decision tree that set out the elements of provocation.[^1] She began her instructions on provocation by telling the jury that a killing which would otherwise be murder is reduced to manslaughter if the person who committed it did so in the heat of passion caused by a sudden provocation. She explained that the partial defence of provocation had five elements, namely, that:
Nicholas Baltzis engaged in conduct that constituted an indictable offence punishable by five years or more;
His conduct was sufficient to deprive an ordinary person of the power of self-control;
When Karl Hallman killed Nicholas Baltzis, he had lost the power of self-control as a result of Nicholas Baltzis’s conduct;
Nicholas Baltzis’s conduct was sudden; and
Karl Hallman’s acts that caused Mr. Baltzis’s death were committed suddenly and before there was time for his passion to cool. […]
[12] She further explained that the appellant was not required to prove that he was provoked, but that the Crown had to prove beyond a reasonable doubt that he was not:
Mr. Hallman is not required to prove that the defence of provocation applies to him. The Crown is obliged to prove beyond a reasonable doubt that it does not. Unless the Crown proves beyond a reasonable doubt that at least one of these five conditions was absent, you must acquit Mr. Hallman of Murder but find him guilty of Manslaughter.
To decide whether the Crown has proved beyond a reasonable doubt that the defence of provocation does not apply, you will have to consider the five questions. […]
The remainder of her instructions on provocation largely followed the Canadian Judicial Council’s model charge.
C. THe jury’s questions on provocation and the triaL judge’s answers
(1) The jury’s questions on provocation
(a) Questions on the first day of deliberations
[13] During their first day of deliberations, the jury sent some questions to the trial judge, two of which are pertinent to the appeal.[^2] First, they asked: “[i]s it possible to receive a transcript of the judge’s instructions of the law provided this morning. We understood we would receive it, but we only have the decision tree sheets. Thank you.” The trial judge responded to this question by providing a single copy of the charge to the jury, telling the jurors they could have additional copies if they requested them.
[14] The jury’s second question was: “For provocation, does there only need to be one “no” and does that specific “no” need to be unanimous? Need more clarification on provocation decision tree.”
[15] The trial judge declined to answer this question. Instead, she told the jury that they might find the answer in the written charge, but she did not identify any particular passage. She told the jury:
So what I am going to do in terms of that question, is we are just going to hold it in abeyance for the moment. Perhaps receiving my jury charge will go some distance to explain provocation perhaps a little clearer. If, however, you still need some clarification, if you could just write another note and we will have you back in and see if we cannot figure something out, okay?
[16] On appeal, the appellant acknowledges that, since the jury did not ask for further clarification, one can reasonably infer that they found the answer to their question in the written copy of the charge. Therefore, he does not argue that the trial judge’s answer to this question was so inadequate as to warrant a new trial. I agree, although I observe that it would have been preferable for the trial judge to have answered the jury’s question directly, rather than requiring jurors to find the answer themselves in the written copy of the charge.
(b) Questions on the second day of deliberations
[17] The next day, the jury asked a further series of questions about provocation, which referred to the provocation decision tree:
We are stuck on provocation …
Some jurors are interpreting wording differently, for example:
what does “sudden” and “suddenly” mean from points 4 and 5
what is “sufficient” (pt #2)
As noted above, the points from the decision tree referred to in these questions were:
(2) [Mr. Baltzis’s] conduct was sufficient to deprive an ordinary person of the power of self-control;
(4) Nicholas Baltzis’s conduct was sudden; and
(5) Karl Hallman’s acts that caused Mr. Baltzis’s death were committed suddenly and before there was time for his passion to cool.
[18] On a separate sheet of paper, the jury asked further:
When looking @ the Decision Tree Provocation, is the “conduct” referred to in the boxes on the left-hand side, only referring to the indictable conduct described in the top Box on the left hand side, or does “conduct” in the subsequent boxes refer to the totality of conduct by N. Baltzis?
[19] These questions reveal that the jury was struggling with the defence of provocation. Among other things, they were uncertain about what alleged conduct by Mr. Baltzis they were to consider when applying the “suddenness” requirement. Was it the act of holding a knife to the appellant’s throat, which amounted to an assault with a weapon? Or was the jury to apply the suddenness criterion to the whole interaction between the two, which lasted more than an hour, during which the appellant described the deceased as acting erratically?
[20] After a lengthy discussion with counsel, the trial judge provided her answers to these questions, reproduced below. The jury then resumed deliberating and returned a verdict of guilty of second-degree murder about four hours later.
[21] The trial judge divided the jury’s questions into four parts, which she read out and answered as follows:
The first question I am going to deal with … which I have labelled number one is, “We are stuck on provocation. Some jurors are interpreting wording differently. For example, what does ‘sudden’ and ‘suddenly’ mean from points four and five? Is ‘sudden’ the specific moment, the indictable conduct, or would it encompass the whole event and circumstances?”
That is the first part. So, this is what I am going to say to you in response. ‘Sudden’ and/or ‘suddenly’ means this, “Provoking conduct or words that strikes upon a person’s mind, unexpectedly, when he or she is not prepared for it.” Okay?
The second portion of that, “Is ‘sudden’ a specific moment, the indictable conduct, or would it encompass the whole event and circumstances?”
So, the indictable conduct we have spoken about is the Assault with a Weapon allegation, and no, it is not confined to just that. You take into account everything that was said, or done, at the time, including any previous exchanges that may have occurred between them.
And then your last question on this is, “What is meant by ‘sufficient’?”
“Sufficient” means, “Whether an ordinary person, in these circumstances, with the characteristics of Mr. Hallman, confronted with the same wrongful act or insult, would have lost the power of self-control.”
And then what I have marked as question two, “When looking at the decision tree for provocation, is the conduct referred to in the boxes on the left-hand side only referring to the indictable conduct described in the top box, or does conduct in the subsequent boxes refer to the totality of the conduct of Mr. Baltzis?” And again, you should consider all of the evidence, and everything that was said and/or done, not just what we referred to as the Assault with the Weapon.
D. ANALYSIS
[22] Jury questions offer a narrow sightline into the jury room during deliberations. They signal that that the jury, or some jury members, need help to properly discharge their oaths or affirmations. Jury questions are a delicate matter, calling for care and caution. When a jury question discloses confusion or uncertainty on a particular point, that confusion and/or uncertainty must be addressed in a direct and timely way, failing which the validity of the verdict may be cast into doubt. Questions from a jury “merit a full, careful and correct response” by the trial judge: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 759-60.
[23] These principles are uncontroversial. No party on this appeal disputed them, and rightly so. As the Supreme Court put it more than 30 years ago, “[t]he jury has said in effect, on this issue there is confusion, please help us. That help must be provided”, and “it is essential that the recharge on the issue presented by the question be correct and comprehensive. No less will suffice”: R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 530.
[24] For its part, this court recently echoed the importance of a clear answer to a jury’s cry for help. “A question from a jury usually concerns an important point in the jury’s reasoning, identifying an issue on which they require direction”. It indicates “a particular problem the jury is confronting – on which they are focused”, so “courts have recognized that answers to jury questions will be given special emphasis by jurors”. That means trial judges must “fully and properly answer a question posed by the jury … even if the subject-matter of the question has been reviewed in the main charge”: R. v. Shaw, 2024 ONCA 119, 170 O.R. (3d) 161, at para. 64.
[25] In this case, the jury questions were important. They were directly related to the appellant’s defence at trial. They called for clear and correct answers.
[26] The defence of provocation hinged on the notion of suddenness. However, the jury could only apply that criterion if the jurors knew what had to be “sudden”. As the appellant points out, the CJC model instructions use the term “sudden” to describe two different things: (i) the rapidity of the provoking conduct by the deceased (point 4); and (ii) the speed of the accused’s response to that conduct (point 5). The jury specifically asked for guidance about both points.
[27] The trial judge’s answer to the jury’s questions were deficient in three main respects.
[28] First, while the trial judge did address what the term “sudden” meant in the context of the fourth element of the provocation defence, her answer essentially repeated what she had already said about this element in her main charge. Since the jury already had a written copy of the charge and was seeking additional guidance from the trial judge, simply repeating what she had said already was unlikely to be of any real assistance. In this situation, “[e]xplaining the idea the jury has asked to have clarified in different words may be what is necessary for the jury to understand”: R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540, at para. 25.
[29] Second, the trial judge’s answer addressed the meaning of “sudden” only in the context of the fourth element. The definition of “sudden” from her main charge that she repeated in her answer was meaningless in relation to the fifth element, which asked whether the appellant had acted suddenly, before there was time for his passion to cool. The question of what it meant for the appellant to act suddenly was never clarified for the jury.
[30] I do not agree with Crown counsel that the trial judge’s failure to address this part of the jury’s question did not matter because there was nothing she could have said in response beyond what she had already said in her main charge. It was clear from the jury’s question that they needed additional assistance on this point. It was incumbent on the trial judge to provide that assistance.
[31] Third, and most importantly, the trial judge’s answers about what aspect of Mr. Baltzis’s conduct had to be sudden amounted to misdirection.
[32] It is true that the jury had to consider the encounter as a whole in determining whether the provocative act by Mr. Baltzis was sudden. However, the encounter as a whole was not what had to be sudden. It simply provided the context for considering the suddenness of the provocative act, which in this case was the appellant’s claim that Mr. Baltzis had held a knife to his throat.
[33] The jury was evidently confused about this critical point, and wanted guidance about which aspect of Mr. Baltzis’s “conduct” had to be “sudden”: was it his act of placing the knife to the appellant’s neck, or the “totality of [his] conduct” leading up to the fight in which he was killed?
[34] The trial judge’s answers did not clarify the essential point. Rather than telling the jury that what had to be “sudden” was the deceased’s provocative act of holding a knife to the appellant’s throat, the trial judge told them that the suddenness requirement was not “confined to just that”, and that they had to “take into account everything that was said, or done … including any previous exchanges that may have occurred between them.” Although the second part of this answer was correct in one sense – the jury did have to “take into account everything” as context – the jury might well have misunderstood that the defence would fail if the overall encounter between Mr. Baltzis and the appellant was not “sudden”.
[35] The potential for misunderstanding was compounded by the final portion of the trial judge’s answer, in which she directed the jurors that the “conduct” of Mr. Baltzis they were to consider was as “everything that was said and/or done, not just what we referred to as the Assault with the Weapon”. Although it was not incorrect that the jury had to “consider” all of this conduct, the jury could very well have been left with the mistaken impression that the requirement of suddenness applied to the whole of the encounter, and globally, to all of Mr. Baltzis’s alleged erratic conduct. This had the potential to doom the defence to failure.
[36] It was open to the jury to be left with a reasonable doubt about whether Mr. Baltzis’s alleged use of the knife represented an escalation of aggression that the appellant was not expecting, even though on the appellant’s account it occurred against the backdrop of other erratic behaviour by Mr. Baltzis that day. On the other hand, the jury was unlikely to conclude that the entire course of erratic behaviour qualified as “sudden”, because on the appellant’s account it went on for at least an hour. If the jury was satisfied beyond a reasonable doubt that the “suddenness” requirement in the fourth element of the defence was not satisfied, the defence of provocation could not succeed.
[37] In all of the circumstances, the jury was not adequately instructed on one of the defences relied upon by the appellant at trial. Having found an air of reality to the defence of provocation, the trial judge was obliged to ensure that the jury was properly instructed, not only in the main charge, but also in responses to the jury’s questions. The trial judge’s answers to their questions were deficient. As a result, there is reason to doubt the validity of the jury’s rejection of the appellant’s provocation defence.
[38] For all of these reasons, I would allow the appeal order a new trial.
Released: February 21, 2025 “G.H.”
“R. Pomerance J.A.”
“I agree. Grant Huscroft J.A.”
“I agree. J. Dawe J.A.”
[^1]: These decision trees were not made Registrar’s exhibits, and appellate counsel have been unable to locate copies. However, the basic content of the decision tree on provocation was summarized in the trial judge’s instructions.
[^2]: The jury began deliberating shortly before noon. The transcript does not note the time when their initial questions were received, but the trial judge’s discussion with counsel about these questions is noted to have ended at 7:40 pm. The jury also asked if they could be given a copy of the pathologist’s report, and were told that it was not in evidence but that they could request a playback of his trial testimony.