COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Madison, 2025 ONCA 42

DATE: 20250122

DOCKET: COA-23-CR-0286

Fairburn A.C.J.O., Gomery and Wilson JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Connor Madison

Appellant

Selwyn Pieters, for the appellant

Andreea Baiasu and Emily Bala, for the respondent

Heard: October 30, 2024

On appeal from the conviction entered by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury, on March 30, 2022, and from the sentence imposed on May 4, 2022, with reasons reported at 2022 ONSC 2537.

Fairburn A.C.J.O. and Wilson J.A.:

A. Overview

[1] During the night of June 25, 2020, the appellant repeatedly stabbed Stephon Knight-Roberts in a public park in the St. James Town neighbourhood of Toronto. Some of the stab wounds were to the deceased’s chest and two were to his abdomen. The wounds were so deep that they penetrated Mr. Knight-Roberts’ heart, liver and lungs. According to one expert witness, any one of them could have caused his death.

[2] Shortly before the stabbing, Mr. Knight-Roberts and an unknown man had robbed the appellant, taking his firearm.

[3] The appellant asked the trial judge to instruct the jury on the defences of intoxication and self-defence, as well as the partial defence of provocation. While the trial judge was satisfied that both intoxication and provocation could be left with the jury, he ruled that self-defence lacked an air of reality and, therefore, kept it from the jury’s deliberations.

[4] The appellant was tried for and convicted of second-degree murder, after which he received a life sentence with a period of parole ineligibility of 13 years.

[5] This is an appeal from conviction and sentence.

[6] Following oral submissions, we dismissed the conviction appeal with reasons to follow and reserved on the sentence appeal. We would also dismiss the sentence appeal. These are our reasons for both the conviction and sentence appeals.

B. Background

[7] The murder took place before midnight on June 25, 2020. Many of the salient events were captured on video surveillance, which the jury had the opportunity to watch at trial.

[8] At approximately 11:30 p.m., the appellant went to a park near Wellesley Street East and Ontario Street, where several people were gathered. Mr. Knight-Roberts arrived shortly after the appellant and asked to speak with him. The two men left the group and walked to a different area of the park. They were then joined by another man whose identity remains unknown. A struggle eventually broke out. Mr. Knight-Roberts was the primary aggressor during that fight. He and the unknown male eventually took the appellant’s firearm and left the scene.

[9] The surveillance video reveals that, following that interaction, the appellant got up from the ground, had a brief interaction with the deceased, and then walked away and retrieved something close by. He then returned to Mr. Knight-Roberts and started stabbing him. Although Mr. Knight-Roberts was able to stagger away, attempting to escape down an alleyway, the appellant pursued him, and the stabbing continued. Several others attempted to intervene, but to no avail. The stabbing was relentless and chilling, much of it having been caught on videotape, some of which contained audio on which the appellant can be heard saying, “[g]uy just took my fucking stick”.

[10] Although one of the witnesses who attempted to intervene said that, by the time of trial, he had no recollection of the events, he had left a voicemail on his mother’s phone at the exact same time as he was witnessing the attack. That voicemail recording had the witness saying to the appellant: “[g]et out of here bro” and “[w]hy did you stab him like that, just stop”. The responses from the appellant included, “he just took my strap off me bro”, “[h]e took my fucking stick off me bro”, and “[t]his kid cost me money.”

[11] Another witness at trial testified that he heard the appellant say to Mr. Knight-Roberts: “[y]ou son of a bitch, you son of a bitch, you took my stick” and “[m]otherfucker, this is payback.”

[12] The deceased had no weapons on him when he was stabbed. He was pronounced dead at the hospital.

C. AnalysIS

(1) Overview

[13] The appellant raises four grounds of appeal against conviction. As an overarching issue, he claims that the jury roll was improperly constituted and that this resulted in a miscarriage of justice that requires a new trial. He also raises three other arguments, rooted in errors alleged to have been made by the trial judge. He contends that (a) the trial judge erred in declining to leave self-defence for the jury’s consideration; (b) the trial judge erred by admitting highly prejudicial prior disreputable conduct evidence; and (c) the trial judge erred by finding that the appellant’s statement was voluntary and, therefore, admissible for purposes of cross-examination should the appellant testify at trial. The appellant never testified and so the jury never heard about the statement.

[14] As well, the appellant suggests that the trial judge erred by failing to take his Indigeneity into account at every step along the way during the trial. He also marshals this argument in support of the individual issues raised, claiming that, for instance, the trial judge should have taken his Indigeneity into account in the context of his claim that he was acting in self-defence. To the extent necessary, we address this issue within the context of the specific issues raised. As for the overarching claim, it is better left for another day, where, at a minimum, the claim has been made in the court of first instance, where we have the benefit of that court’s views, and we have the benefit of a record elicited to support the claim.

[15] The appellant also appeals against the 13-year period of parole ineligibility imposed by the trial judge.

[16] We conclude that no miscarriage of justice arose from the irregularities in the jury roll, nor were there any errors in the trial judge’s reasons. Similarly, the trial judge did not make any error in crafting the sentence.

(2) There was no miscarriage of justice arising from irregularities in the jury roll

(a) Overview

[17] The appellant claims that errors made in creating the 2022 jury roll resulted in a miscarriage of justice that requires a new trial.

[18] For the reasons that follow, we would not give effect to this ground of appeal.

(b) Background Facts

[19] This trial took place in the early spring of 2022. The appellant was sentenced on May 4, 2022. Not long after the sentencing, it was discovered that the source lists provided for the purpose of compiling the 2020, 2021 and 2022 jury rolls had been infected by an error. It was also discovered that the questionnaire sent out to randomly selected prospective jurors for the 2022 jury roll contained an error.

[20] We pause here to provide a high-level explanation of how the Ontario jury roll comes to be, an explanation that provides necessary context for what is to come.

[21] The creation of the jury roll in Ontario is governed by the Juries Act, R.S.O. 1990, c. J.3. The process begins with the collection of the source list, a preliminary list of all people who may be eligible to serve on the jury. Since 2019, the source list has been drawn from those individuals registered as insured persons under the Health Insurance Act, R.S.O. 1990, c. H.6, in Ontario [“OHIP”] and who meet other statutory requirements, such as Canadian citizenship, age and residence requirements: Juries Act, s. 4.1(2).

[22] Once the source list is compiled, names of individuals are randomly selected from it. These individuals are sent a questionnaire to further determine their eligibility to serve as a juror. The number of people on the source list who are targeted for questionnaires will vary from year to year, depending on the anticipated need for jurors in the following year.

[23] Once those questionnaires are received back, then the jury roll can be completed. That jury roll consists of all persons eligible for jury service based on their responses on the questionnaires. Jury panels are then randomly drawn, as the need arises, from the jury roll. Petit juries (juries for specific civil and criminal trials) are selected from the jury panels.

[24] In this case, there was a problem at the first and second stages, both in how the source list was put together and how the questionnaire process was conducted.

[25] As for the source list problem, a group of individuals — those who turned 18 years of age in 2021 — were left off the list. Pursuant to s. 4.1(2)(d) of the Juries Act, the source list must include all those who are “at least 18 years of age or will attain that age on or before December 31 of the year in which the list is provided” (emphasis added). For purposes of this case, that meant that those who had turned 18 years of age by December 31, 2021, should have been included on the source list from which the 2022 jury roll was created. These individuals were erroneously excluded from the source list and, therefore, excluded from random selection for receipt of a questionnaire and potential inclusion on the 2022 jury roll.

[26] The parties have settled upon an agreed statement of fact which is admitted on consent as fresh evidence on appeal. The salient portions of the agreed upon facts as they relate to the “age issue” read as follows:

As of May 29, 2019, subsection 4.1 of the Juries Act prescribes the OHIP database as the source list for the jury roll. Under the legislation, the Minister of Health and Long-Term Care is required to provide the Jury Sheriff with the names and addresses of every person who:

a. is registered as an insured person under the Health Insurance Act and the regulations made under it;

b. resides in Ontario;

c. is a Canadian citizen; and

d. is at least 18 years of age or will attain the age of 18 on or before December 31 of the year in which the list is provided. [Emphasis added.]

Pursuant to section 5 of the Juries Act, the local sheriff, typically in consultation with the judiciary, will determine how many questionnaires to send out in each jury area. This will vary annually based on anticipated needs for the upcoming year.

Using a randomization algorithm, the required number of names for the following year are randomly drawn from the source list to receive jury questionnaires in the mail. The questionnaires are used to determine eligibility for jury duty.

Every person who returns their questionnaire and who, based on their responses to the questionnaire, appears to be eligible, will be placed on the jury roll.

Throughout the year, jurors are randomly selected from the jury roll when jury panels are needed for a trial or an inquest.

On June 7, 2022, Jaimie Lee, the Director of the Court Services Division, Program Management Branch, responsible for the Jury Management Unit, learned that the source lists provided for the purpose of compiling the 2020, 2021 and 2022 jury rolls excluded people who were turning 18 in the year the roll was being compiled, who would be eligible to serve on a jury the following year.

Pursuant to the Personal Health Information Protection Act, 2004, the Ministry of Health is only authorized to provide the information needed for the jury source list that is permitted or required by law. According to the Juries Act, the Ministry of Health is only required to provide names and addresses of individuals to the Ministry of the Attorney General. Therefore, birthdates of individuals in the OHIP database cannot be included as part of the source list. The error was not immediately apparent for this reason. The error came to light in the course of preparing the 2023 roll.

Because selection from the source list is randomized, it is not possible to say how many of the 18-year-olds excluded from these source lists would have:

(a) been randomly selected to receive a questionnaire; and

(b) also been otherwise eligible to be added to the jury roll.

For the 2022 jury year, the source list contained 10,186,137 people. Of those, 815,707 (approximately 8%) were randomly selected to receive questionnaires to determine their eligibility for jury duty. In 2022, the source list error resulted in 145,046 (1.4%) people being excluded from the source list and not having an opportunity to be randomly selected to receive an eligibility questionnaire. [Emphasis added.]

[27] In short, those who turned 18 years of age in 2021 were excluded from the group of over 10 million people who were on the “source list”. This means that, had the matter been approached correctly, there would have been another just over 145,000 people — all individuals who turned 18 years of age in 2021 — placed on the over 10-million-person source list. Whether any of those 145,000 individuals would have been in the randomly selected eight percent who received questionnaires and, if so, whether they would have been eligible to serve as jurors had they filled out those questionnaires and therefore placed on the jury roll, and whether, had they made it to the roll, they would have been randomly selected to be part of a jury panel, and, if so, whether they would have been selected to be part of a petit jury, are all unknowns. What we do know is that the chances of any of those 1.4 percent of individuals left off the over 10-million-person source list actually having made it through to a petit jury got slimmer and slimmer and slimmer with each step along the way.

[28] Although the appellant does not rely heavily on it, there was also an error made in relation to individuals who were randomly selected from the source list to receive a questionnaire. In accordance with s. 3(4) of the Juries Act, a person is “ineligible to serve as a juror if, at any time within three years preceding the year for which the jury roll is prepared”, that person either attended court for “jury service in response to a summons after selection from the jury roll” or “attended a coroner’s inquest for jury service in response to a summons” pursuant to s. 33(2) of the Coroners Act 2019, c. 7, Sched. 35, s. 3(2). We will refer to this as having performed “jury service.” Therefore, for purposes of creating the 2022 jury roll, anyone who had performed jury service in 2019, 2020 or 2021, was not eligible to serve in 2022 and had to be excluded for the 2022 jury roll.

[29] The problem is that when the questionnaire was sent to the 815,707 individuals randomly selected from the source list, it contained an error. Instead of asking individuals to self-identify if they had performed jury service in 2019, 2020 and 2021, they were asked to self-identify if they had performed jury service in 2018, 2019 and 2020. Accordingly, it is possible that some individuals who were ineligible to serve self-identified as eligible and some individuals who were eligible to serve self-identified as ineligible.

[30] The parties agree that there is no way to determine the exact number of people affected by this error. What is known is that 16,193 individuals self-identified as ineligible based on this question and were not added to the jury roll as a result.

(c) The Appellant’s Position

[31] The appellant asserts that the mistakes in creating the 2022 jury roll created an unrepresentative jury, which gave rise to breaches of ss. 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms, all of which is said to have resulted in a miscarriage of justice. The appellant points to three factors advancing these arguments.

[32] First, as a young person himself, 22 years of age at the time of trial, the appellant’s peer group was not fully available to judge his case. This is said to have given rise to an appearance of partiality. While none of the excluded 18-year-olds may have ended up on the jury, the appearance of partiality is said to have arisen from their omission from the jury roll and resulted in a s. 11(d) breach.

[33] Second, the appellant maintains that this court should take judicial notice of the fact that young adults are much more likely to understand and apply what he describes as a “shift in consciousness” when it comes to Canada’s colonial history and its impact on Indigenous individuals, like him. Again, the potential reduction of young adults is said to have been unfair and, while an 18-year-old may not have ended up on the jury, the appearance of fairness is shaken giving rise to a s. 11(f) Charter breach.

[34] Third and finally, the appellant contends that the administrative lack of care demonstrated by the government in its compilation of the jury roll, seen through the light of what the appellant maintains is an ongoing crisis in public confidence in the administration of justice, “is itself a violation.” We take from this language that he is referring to a violation of s. 11(f) of the Charter and the need for a representative jury to promote an appearance of fairness. He contends that given that the errors in compiling the jury roll were many and serious, they are “manifestly problematic” and a new trial is required because the appearance of justice has been so badly compromised.

[35] Ultimately, the appellant claims that these Charter breaches resulted in a miscarriage of justice.

(d) Analysis

i. The Appropriate Analytical Framework and Legal Test

[36] To begin, it is essential to recognize that there exists no constitutional guarantee to proportionate representation of any particular group on a jury roll. While representativeness is a critical aspect of the jury system, it is not to be confused with the specific targeting of individuals or groups for inclusion on a jury roll: R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at paras. 39-42, 59, and 61. Therefore, in determining the representativeness of a jury roll, we do not look to the actual constitution of the roll — the end product — but to the actual process engaged in compiling the roll: Kokopenace, at para. 40.

[37] There are three key features of the jury roll process that guarantee representativeness: (a) the source list is drawn from a broad cross-section of society[^1]; (b) there is a truly random selection of potential jurors from that source list, meaning that all have an equal chance of being selected for inclusion on the jury roll; and (c) the process engaged in for the delivery of the notices/questionnaires to those who have been randomly selected from the source list is adequate: Kokopenace, at paras. 39-45.

[38] This concept of representativeness, as understood in its proper context, is captured by both ss. 11(d) and 11(f) of the Charter. Section 11(d) guarantees the right to be “presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. Section 11(f) guarantees the right to the “… benefit of a jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment”.

[39] The role of representativeness under s. 11(d) is rooted in the constitutional right to an impartial trier of fact. This right will be violated whenever the process used to compile the jury “raises an appearance of bias at the systemic level”: Kokopenace, at para. 49. Of course, deliberate exclusion of a particular group from a jury roll “would cast doubt on the integrity of the process and violate s. 11(d) by creating an appearance of partiality”: Kokopenace, at para. 50. Inadvertent conduct will also violate s. 11(d) when the mistake is so serious as to create an appearance of partiality: Kokopenace, at para. 50.

[40] The role of representativeness in relation to s. 11(f) is broader because representativeness not only promotes impartiality but plays a role in legitimizing the jury in the eyes of the community, thereby promoting public trust in the justice system: Kokopenace, at para. 55. Therefore, even where a problem with representativeness is not so serious as to undermine impartiality, a problem with representativeness may well violate s. 11(f): Kokopenace, at para. 57.

[41] If the state has deliberately excluded potential jurors, then it has self-evidently failed to make reasonable efforts at creating a representative jury roll: Kokopenace, at para. 66. If, by contrast, the case is about “unintentional exclusion”, and we include here simple mistakes in the creation of a jury roll, it will be the “quality of the state’s efforts in compiling the jury roll that will determine whether the accused’s right to a representative jury has been respected”: Kokopenace, at para. 66. Finally, even where the state fails to make reasonable efforts, the size of the population excluded from the roll will make a difference. As Moldaver J. put it in Kokopenace, at para. 66:

A failure to make reasonable efforts in respect of a small segment of the population will not undermine the overall representativeness of the jury roll because there is no right to proportionate representation. When only a small segment of the population is affected, there will still have been a fair opportunity for participation by a broad cross-section of society.

[42] As for the appellant’s overarching claim that he has been the subject of a miscarriage of justice, it is rooted in s. 686(1)(a)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. To prevail on such a claim, the appellant must establish not only an irregularity in the constitution of the jury, but also that it resulted in prejudice.

[43] In this case, the appellant does not appear to be suggesting actual prejudice. Rather, his real complaint is that there has been an appearance of unfairness arising from the problems infecting the jury roll. To succeed on this claim, he must establish that the appearance of unfairness is so serious that it shakes the public’s confidence in the administration of justice, such that it “offends the community’s sense of fair play and decency”: R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 195, at para. 72; R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 74. In determining if conduct rises to that level, the court must look to what a “well-informed, reasonable person considering the whole of the circumstances would have perceived” in terms of the fairness of the proceeding: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 73; Davey, at para. 74. This has been described as a “high bar” to meet, a bar that is even higher when the claim rests on an appearance of unfairness as opposed to actual prejudice: Tayo Tompouba, at para. 72; R. v. Kahsai, 2023 SCC 20, 483 D.L.R. (4th) 199, at para. 68.

ii. Application of the principles to this case

[44] There is nothing that occurred here that could amount to a breach of the appellant’s right to a representative jury, as it is understood within ss. 11(d) and 11(f) of the Charter. While administrative errors were undoubtedly made, the state clearly made reasonable efforts to randomly select prospective jurors from a very broad cross-section of society.

[45] There is simply no evidence of intentional conduct or malice in this case. Nor is there even any evidence of negligence or a lack of care. All evidence points to an innocent mistake that, once noticed, was immediately disclosed and remedied. We can do no better than Richetti J. in R. v. Bouffard, 2022 ONSC 4544, at para. 30, where he characterized the error as a “genuine mistake or accident despite the use of a significant and rigorous process to avoid such mistakes.”

[46] Even if the state had failed to make reasonable efforts, the fact remains that the size of the population inadvertently excluded was exceedingly small, only 1.4 percent of the original source list which included over ten million people.

[47] In our view, while the mistakes made in the creation of the 2022 jury roll were regrettable, they did not adversely impact the representativeness of the jury. The failure to include the 1.4 percent of people who turned 18 in 2021 on the source list, which lies at the core of the appellant’s concern, did not undermine the overall representativeness of the jury roll because there was still a fair opportunity for participation by a broad cross-section of society, including young adults.

[48] There was simply no trial unfairness or even an appearance of unfairness. As explained above, the population of 18-year-olds that may have been excluded from the jury was extremely small and, regardless, it is unclear why the exclusion of an individual age group would have raised an appearance of unfairness. To be sure, the appellant was not constitutionally entitled to this group on his jury.

[49] Moreover, we can see no connection between the errors made in this case and the appellant’s Indigeneity. For instance, we see no basis to infer that 18-year-olds are better informed about systemic discrimination than 19-year-olds, 20-year-olds and those who are even older than them. We decline the invitation to take judicial notice of this fact.

[50] In any event, we would simply note that the appellant has no constitutional right to representation on the jury roll of persons who are more sensitive to these issues. Nor does the appellant explain how the fact of his Indigeneity intersected with the jury’s need to consider whether the elements of murder had been proven beyond a reasonable doubt.

[51] Finally, we see no reason to conclude that such an inadvertent mistake would give rise to a public perception of a crisis in the administration of justice.

[52] Therefore, in our view, there were no s. 11(d) or 11(f) Charter breaches, and no miscarriage of justice has been established.

(3) The ruling on self-defence reflects no error (R. v. Madison, [2022 ONSC 2094](https://www.minicounsel.ca/scj/2022/2094))

[53] The trial judge correctly declined to leave self-defence with the jury.

[54] He began by properly noting that he could not leave self-defence with the jury unless there was an air of reality to each of the three elements to self-defence set out in s. 34(1) of the Criminal Code. These three elements are frequently referred to as the catalyst (s. 34(1)(a)), motive (s. 34(1)(b)), and response (s. 34(1)(c)): R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 51. At a high level, for the catalyst, the accused must believe on reasonable grounds that force is being used or threated against them or another person: Khill, at para. 52. For the motive, the accused must act for the purpose of defending against the use or threat of force: Khill, at para. 59. And, for the response, the accused’s actual response must be reasonable in the circumstances: Khill, at para. 62.

[55] The trial judge noted that “there was no evidentiary foundation for” any of the necessary findings in relation to self-defence.

[56] In relation to the catalyst, he noted that the robbery was already complete by the time that the stabbing started. He concluded that there was simply nothing in the evidence to infer that the appellant believed on reasonable grounds that, when he started stabbing the deceased, the deceased was using force or threatening the use of force against him.

[57] Similarly, the trial judge concluded that, when it came to the motive, there was nothing in the evidence from which the jury could find that the stabbing was for the purpose of the appellant defending himself from the deceased. Indeed, all of the evidence pointed in the opposite direction and toward “revenge, or payback.”

[58] Finally, regarding the response, the trial judge found that there was nothing to suggest that the jury could infer that the repeated, relentless, and deep stabbing around 15 times of an unarmed man was reasonable in the circumstances.

[59] The appellant submits that the trial judge erred in failing to appreciate the ambiguity in the evidence, which he says should have given rise to at least an air of reality. We see no ambiguity in the evidence. It was accurately captured and summarized by the trial judge in his ruling. There is nothing served by repeating what the trial judge said in that ruling as it is self-explanatory.

[60] The appellant also argues that the trial judge erred by failing to appreciate that the appellant’s gun had been taken from him during the earlier robbery and that this may have left him in a panicked and fearful state of mind when his confrontation with the deceased started. He further suggests that the fatal wound may have been inflicted early in the series of stabs, at a moment when the appellant reasonably believed that the deceased possessed a firearm and posed a threat to his life. On this basis, the appellant suggests that the deceased kept making his way down the alley until he could go no further and died after falling to the ground. Thus, according to the appellant, the fatal stabbing was done in self-defence because the final stab wounds, the ones inflicted when the deceased was already on the ground, were inflicted only after the deceased was already dead.

[61] The trial judge was well aware of the fact that the appellant’s position was that the deceased had taken his gun during the earlier robbery and that he was concerned that the deceased might use it. Indeed, the trial judge specifically adverted to this in his ruling, where he rejected that there was an evidentiary foundation to support the defence theory that this is what motivated the stabbing:

Counsel for [the appellant] argued that self-defence was available here because [the appellant] was acting to prevent any later use of [the appellant’s] gun by [the deceased] against [the appellant] or others. However, there is no evidence that this was [the appellant’s intent]. In any event, even if there was such evidence, it would be insufficient to make self-defence available to [the appellant]. While force or the threat of force need not be imminent in all cases, in order to avail himself of the defence of self-defence on this basis, the accused would have to have a reasonable apprehension of danger and a reasonable belief that he could not extricate himself from it other than by killing [the deceased]. That is very far from this case.

[62] As for the argument that the appellant was panicked and fearful when he inflicted the fatal wound, an argument that appears to be advanced for the first time on appeal, there is no evidence to support it. In fact, all evidence points in the opposite direction. While the pathologist could not say what order the stab wounds occurred in, the deceased is seen on video still breathing and moving as the final stab wounds are being administered. In any event, regardless of when the fatal wound was administered, and in accordance with the trial judge’s findings, there was simply no evidence to support inferences that could raise a reasonable doubt on the basis of self-defence.

[63] Finally, we do not accept the appellant’s submission that the trial judge erred by failing to consider his Indigeneity in his self-defence analysis. While an accused person’s Indigeneity may be relevant to various issues in a trial, it is a fact-driven analysis that depends upon the circumstances of the case, the issues raised, and the arguments made.

[64] In this case, the appellant’s Indigeneity was not raised before the trial judge in submissions on the availability of self-defence or otherwise. Even if it had been raised, the trial judge’s reasons demonstrate why it could not have had any impact. The fact is that there was no air of reality to self-defence in this case and there is nothing in the record that could support even a possibility that the appellant’s Indigeneity could have impacted the analysis. The appellant does not explain on appeal how his Indigeneity could have injected self-defence with an air of reality, and we can see none.

(4) The prior discreditable conduct ruling reflects no error (R. v. Madison, [2022 ONSC 1545](https://www.minicounsel.ca/scj/2022/1545))

[65] A couple of hours before the stabbing, the appellant was captured on video in a nearby apartment building carrying a large knife in the waist band of his pants.

[66] The trial judge accepted that the defence’s argument that this could be viewed as bad character evidence. Accordingly, he conducted an admissibility inquiry, correctly noting that the video evidence would only be admissible if it was relevant to a material issue at trial other than the appellant’s propensity to commit the offence and if its probative value outweighed its prejudicial effect.

[67] The trial judge concluded that it was open for the jury to draw the inference that the knife seen on the video in the appellant’s possession when he left the apartment was the same knife that he later used to stab the deceased. If the jury came to that conclusion, it would be open to them to conclude that the appellant did not happen to find the knife at the time of the confrontation, but rather that he came to the confrontation with it in hand. This would be relevant to intent because it would support an inference that, when the accused stabbed the deceased with the knife, “he did not merely strike out with whatever came into his hand, but instead, he used an object that he knew to be lethal, and in turn, that he meant to cause the death of the deceased or meant to cause him bodily harm that he knew was likely to cause his death and was reckless whether death ensue[d] or not.” Ultimately, the trial judge found that the probative value of the evidence well outweighed its prejudicial effect, and it was admitted.

[68] The appellant maintains that the trial judge erred in his analysis. He argues that the trial judge erred by finding that the earlier possession of the knife was relevant to intent and that its prejudicial effect was much greater than its probative value. As well, as with the last issue, the appellant again submits that in making the determination to admit the evidence, the trial judge erred by failing to consider the appellant’s Indigeneity.

[69] In our view, the appellant’s objections really amount to an effort to reargue this issue on appeal. It was entirely open to the trial judge to articulate the probative value of the evidence in the manner he did. The appellant was seen with a big knife. Two hours later he killed the deceased with a big knife. Clearly, this had relevance to, among other things, the intention to kill.

[70] We are not a trial court. It was for the trial judge to weigh the probative value of the evidence against its prejudicial effect. That weighing was done with precision and care. There is nothing unreasonable about where the trial judge landed on this issue. Nor do his reasons reflect legal error or a misapprehension of evidence. In these circumstances, we defer to his conclusion that the probative value of the evidence exceeded any prejudice that might have arisen.

[71] As a concluding point, we would simply note that the trial judge treated this evidence with caution in his jury charge, making clear to the jury that the evidence could only be used to determine the issue of intent, and not to decide if the appellant was the sort of person who would commit murder.

[72] As for the appellant’s non-specific suggestion that the trial judge erred by failing to take his Indigeneity into account in relation to this ruling, we rely upon the reasons we have already provided.

(5) The voluntariness ruling reflects no error (R. v. Madison, [2022 ONSC 1749](https://www.minicounsel.ca/scj/2022/1749))

[73] The appellant gave a statement to police after he was arrested, in which he largely declined to answer questions about what had happened. Even so, he acknowledged that he knew the deceased and told the police the following: “[w]ell my lawyer will still have things that are admissible but yes, it was self-defence. I don’t really want to get into details of that until I’ve spoken with my lawyer.” Prior to making this statement, the appellant had already spoken with his lawyer for about 25 minutes.

[74] The trial judge ruled the statement voluntary and admissible for the purposes of cross-examination. Since the appellant did not testify, the statement was never used at trial.

[75] Absent an error of law, voluntariness rulings attract strong deference.

[76] The appellant claims that the trial judge made two interrelated errors. First, he argues that the trial judge made a finding that the appellant was fearful of retribution if he did not cooperate with the police, a finding that he says should have vitiated the statement’s voluntariness. Specifically, the appellant emphasizes that the trial judge found that the appellant’s statements in custody “exhibited … a belief, in all probability reflecting an awareness of systemic discrimination, stereotyping and racism, that he risked retribution from the police if he did not cooperate.” In light of this finding about fear of retribution, the appellant says that the voluntariness finding cannot stand.

[77] Respectfully, the difficulty with this submission is that the trial judge specifically addressed this issue and explained why he nonetheless determined that the statement was voluntary:

I take into account the indigenous status of the accused, who exhibited in his comments while in custody a belief, in all probability reflecting an awareness of systemic discrimination, stereotyping and racism, that he risked retribution from the police if he did not cooperate. But a careful reading of the words exchanged as reflected in the transcript of the interview, and a careful review of the video of the interview, satisfy me beyond a reasonable doubt that the accused understood his right to refuse to answer questions, and made a deliberate choice, uninfluenced by his indigenous status, to speak when he chose to, to remain silent when he chose to, to be evasive when he chose to, and to himself employ tactics in an effort to get what he wanted from the interviewers, all without regard to the absence of his lawyer. [Emphasis added].

[78] It was open to the trial judge to make these findings on the evidence before him and they are entitled to deference from this court.

[79] Finally, the appellant submits that he was induced into giving the statement because, during the interview, he was not provided with a face mask and he was afraid for his life, as his interview occurred during the COVID-19 pandemic. There is no merit to this submission. The trial judge addressed this issue in his reasons and made an explicit finding after watching the video of the interview that the appellant was not fearful for his life or his health. Notably, the appellant never requested a mask during the interview, nor did he ask the police officers to wear one. The trial judge concluded, “any suggestion that the police were attempting to create an oppressive atmosphere by depriving the accused of a mask is without foundation.” This factual finding was open to the trial judge, and we see no error in his reasoning.

(6) The sentence is not unfit and is not tainted by error (R. v. Madison, [2022 ONSC 2537](https://www.minicounsel.ca/scj/2022/2537))

[80] The jury found the appellant guilty of second-degree murder. In accordance with s. 235(1) of the Criminal Code, the trial judge imposed a sentence of life imprisonment. He fixed the period of parole ineligibility at 13 years. The appellant argues that the sentence was demonstrably unfit and that the trial judge erred by: (1) considering previous offences for which the appellant had not been found guilty at the time of the murder; (2) failing to consider that the events leading to the murder were initiated by the deceased’s robbery of the appellant; and (3) relying on the testimony of a witness he found to be inherently incredible and unreliable when determining the appropriate sentence. We do not accept the appellant’s submissions.

[81] In our view, the trial judge’s reasons are balanced, careful and complete, taking into account all of the relevant factors concerning the appellant.

[82] To begin, the sentence was not demonstrably unfit. It was open to the trial judge to find that there were multiple aggravating factors at work in this case: the murder was “callous, senseless, brutal and prolonged”; it was “as an act of vengeance”; the appellant was armed with both a gun and a knife while prohibited from possessing weapons; and the murder had a “devastating and enduring impact” on the deceased’s family. The trial judge noted that at the time of the murder, the appellant was a first-time offender who did not have a criminal record. He also carefully reviewed the appellant’s background, considered the circumstances of the appellant as an Indigenous man, and thoroughly engaged with the appellant’s Gladue report. In light of all these factors, we cannot say that the trial judge arrived at a sentence that is demonstrably unfit.

[83] As for the appellant’s first alleged error in principle, the trial judge understood well that the appellant did not have a criminal record at the time that he murdered the deceased. He specifically noted that he was considering those offences as they related to his prospects for rehabilitation. This was entirely proper.

[84] As for the appellant’s second alleged error, the trial judge was not obligated to treat the robbery as a mitigating factor. To the contrary, it was open to the trial judge to conclude that the deceased was stabbed in a “very extreme act of vigilante justice” arising from the robbery. There is nothing wrong with that conclusion.

[85] As for the final alleged error, the trial judge did not rely on the evidence of a witness who he found incredible and unreliable. In support of this proposition, the appellant relies on a passage from the charge to the jury summarizing the defence position. In fact, the trial judge found that the witness in question was accurate in his testimony, relying on the witness’ statement that he overheard the appellant say “you son of a bitch, you took my stick”, and “[m]otherfucker, this is payback.” While the trial judge made it clear that he could not conclude that these quotations captured the appellant’s words verbatim, he was “satisfied beyond a reasonable doubt that they accurately reflect the gist of what each man said.” It was open to him to arrive at that finding of fact.

D. Disposition

[86] The conviction appeal is dismissed. Leave to appeal sentence is granted. The sentence appeal is dismissed.

Released: “January 22, 2025 JMF”

“Fairburn A.C.J.O.”

“D.A. Wilson J.A.”

“I agree. S. Gomery J.A.”

[^1]: At the time that Kokopenace was decided, the source list was taken from the Municipal Property Assessment Corporation records: see Kokopenace, at paras. 10-11.