Court File and Parties

Court File No.: 16-M7884 Date: 2019/01/08 Superior Court of Justice - Ontario

Re: Her Majesty the Queen v. Joe-Bryan Ndikuriyo

Before: Justice R. Laliberté

Counsel: Mike Boyce and Hart Shouldice, Counsel for the Respondent Oliver Abergel and Keara Lundrigan, Counsel for the Applicant

Ruling as to Final Jury Instructions

LALIBERTE, J.

[1] Following the pre-charge hearing and submissions, the Court advised counsel of the following rulings and that brief reasons would follows:

• that provocation would not be left with the jury; this was sought by defence and opposed by the Crown;
• that self-defence would be put to the jury; this was sought by defence and opposed by the Crown;
• that the Court would provide the jury with a “rolled-up” instruction; this was sought by defence and not opposed by the Crown;
• that the Court would provide the jury with limiting instructions as to the accused’s after-the-fact conduct; defence was seeking an instruction that such evidence had no probative value.

[2] The following are brief reasons for these rulings.

Putting Defences to the Jury

General Principles

[3] In deciding whether a defence should be put to the jury, the Court is guided by the following principles:

• the threshold is whether there is an air of reality to the defence;
• a defence has an air of reality when on the totality of the evidence there is a basis upon which a properly instructed jury acting reasonably could have a reasonable doubt in respect of the constituent elements of the defence and thereby, could acquit;
• the trial judge must consider the totality of the evidence and assume the evidence relied upon by the accused to be true;
• while the trial judge must ensure that there is an evidentiary foundation for the defence, any doubts as to whether the air of reality threshold is met should be resolved in favour of leaving the defence to the jury;
• an air of reality cannot spring from bare, unsupported assertions by the accused; defences supported only by bold assertions that cannot be borne out by the evidence, viewed in its totality, should be kept from the jury.

[4] The Court has considered the following cases:

• R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3;
• R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420;
• R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452;
• R. v. Angelis, 2013 ONCA 70, [2013] O.J. no. 439
• R. v. Grant, 2016 ONCA 639, [2016] O.J. no. 4419

A) Provocation

[5] The Court is of the view that the evidence, as a whole, does not provide an air of reality to the partial defence of provocation.

[6] The Supreme Court of Canada identified the requirements of provocation as follows in R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, at para. 10:

“10…(1) a wrongful act or insult that would have caused an ordinary person to be deprived of his or her self-control; (2) which is sudden and unexpected; (3) which in fact caused the accused to act in anger; (4) before having recovered his or her normal control…”

[7] The “wrongful act or insult” component is now replaced by statutory amendment. It is defined as conduct of the victim that would constitute an indictable offence under the Criminal Code punishable by five or more years of imprisonment.

[8] The Court finds that the evidence does not disclose an evidentiary foundation for the following elements of provocation:

• there is no identifiable and minimally described conduct of the deceased Soloman Odekunle that would constitute an indictable offence punishable by five or more years of imprisonment;
• in the absence of a defined conduct, there is no basis to measure how its nature was sufficient to deprive an ordinary person of the power of self-control
• there is no evidence of a sudden and unexpected conduct by the victim causing the accused to act as he did.

[9] There is nothing in the Crown’s evidence to suggest that the deceased had committed an indictable offence. In fact, the evidence suggests that he was passively standing in front of the bar waiting for a taxi when he was attacked by the accused.

[10] The accused’s statement to the police of November 6, 2016, which was introduced as part of Crown’s case does not provide an evidentiary basis to support a possible finding that the deceased personally and/or collectively committed an indictable offence.

[11] Counsel for the accused referred to parts of the said statement and suggested that these revealed the commission of an indictable offence by the victim. Reference was made to the following:

• “…three people put me in a position where they’re telling me anytime now…” (p. 21);
• “…I was put in a position where there’s nothing I can do. I can’t talk my way out…” (p. 23);
• “…they’re gonna put me in a corner…” (p. 24);
• “…when people are walking around, terrorizing people…” (p. 27);
• “…when people put you in a corner…” (p. 35);
• “…they’re at the door, me, I…me, I can’t go…” (p.35);
• “…the one that was like menacing me the most…I went for him…” (p. 36);
• “…they’re in my face the whole time…” (p. 39);
• “…they’re in front of me…” (p. 52);
• “…I felt cornered…” (p. 52).

[12] In the absence of at least some minimal description of the victim’s actions in support of the accused’s assertions in his statement, the Court cannot assess whether there is an air of reality to these actions amounting to offences under ss. 264.1 and/or 266 of the Criminal Code.

[13] Furthermore, even assuming that there is an air of reality in support of the victim having committed an indictable offence, the lack of particulars and circumstances of the victim’s alleged conduct, is such that a properly instructed jury acting reasonably could not have a reasonable doubt in respect of the other constituent elements of the defence of provocation. The Court notes the following:

• there is no evidence to connect the actions of the victim with the accused having been deprived of his ability to self-control; specifically, there is no suggestion in the evidence that the victim did anything while outside causing the accused, who was inside the bar, to “snap”, break a beer bottle, “go” for the victim and stab him to the neck;
• there is no suggestion that the victim’s actions while outside, if any, were sudden and unexpected; in fact, the accused’s statement to the police suggest otherwise:
  • “…they’re in my face the whole time…”
  • “…the guy keeping excusing himself…”
  • “…three people put me in a position where they’re telling me anytime now…”
  • “…the one that was like menacing me the most…I went for him…”
• a reasonable jury cannot assess whether the victim’s conduct was of such a nature as to be sufficient to deprive an ordinary person of the power of self-control.

B) Self-Defence

[14] The Court’s finding is that while close to the line, there is an evidentiary foundation warranting the putting of self-defence to the jury.

[15] The essential elements of self-defence that the Crown must disprove beyond a reasonable doubt are set out in s. 34 of the Criminal Code and can be summarized as follows:

1. the accused believed, on reasonable grounds, that force was being used or threatened against him;
2. the accused acted for the purpose of protecting himself; and
3. the accused’s actions were reasonable in the circumstances.

1. Reasonable belief

[16] While lacking in details and particulars, the basis for the accused’s belief that force was being threatened against him is found in his statement to the police. As already noted, the Court is required to assume that he was being truthful with the police.

[17] The Court notes the following portions of his said statement:

• “…what if somebody tries to…to like physically attack you…” (p. 20);
• “…the three people put me in a position where they’re telling me anytime now…” (p. 21);
• “…I was put in a position where there’s nothing I can do. I can’t talk my way out…” (p. 23);
• “Going forward means either they’re gonna put me in a corner or I’m gonna find my way out of the corner…” (p. 24);
• “Q. So you felt back…backed into a corner and you had to fight your way out.
• A. Yeah. Yeah. Man…” (p. 24);
• “…Tonight, it was one of those, there’s nowhere I could go…The guys they’re at the door, me, I… me I can’t go…” (p. 35);
• “…maybe if I can’t fight three people want to beat me up…” (p. 37)

[18] The cumulative effect of these provides a subjective and objective basis for the accused’s stated belief that the three individuals were threatening to physically attack him. If what the accused told the police is assumed to be true, there is a basis in the evidence for his fear. It is also fair to assume that a reasonable person placed in the accused’s position would have the same fear and belief.

2. Acted for the purpose of protecting himself

[19] The accused’s statement also provides an evidentiary basis for a finding that the accused acted for the purpose of protecting himself from the apprehended fear that force would be used against him by the three individuals. Again, the Court must assume that he was truthful with the police. The Court notes the following passages:

• “…I was put in a position where there’s nothing I can do”. (p. 23)
• “…they’re gonna put me in a corner…or I’m gonna find my way out of the corner…” (p. 24);
• “…if I’m talking to you right now, it’s cause I found my way out of the corner”. (p. 24);
• “…and sometimes, you can run, sometimes, you can’t run…tonight, it was one of those, there’s nowhere I could go…the guys they’re at the door, me, I…me I can’t go…” (p. 35);
• “Q. Yeah, so you thought they were gonna take your life and then…and then you went attack mode. It that what happened?
• A. Yeah man. Yeah Man”. (p. 53).

[20] The whole of the evidence to be considered on this issue includes the testimony of Crown witness Katherine Bray and what she observed while being a passenger in a vehicle waiting to turn. She describes seeing five males and two females exiting the bar at the same time. This was followed with a fight breaking out between two of these males within seconds. They were going back and forth hitting each other in the face.

[21] The evidence of Katherine Bray must also be seen in light of the following evidence which bolsters the “air of reality” that the accused was acting for the purpose of protecting himself:

• the evidence of witness Myers that he also had a beer bottle in his hand which he used to strike the accused;
• the fact that witness Myers had denied having injured the accused and used an item to strike him until weeks after the preliminary inquiry;
• the fact that the accused was injured to the face and his head;
• the finding of the accused’s DNA and blood as the major contributor on the neck of a broken beer bottle found at the scene;
• Dr. Walker’s expert opinion that the injuries to the accused were likely not caused as described and testified to by the witness Myers by the smashing of a beer bottle on the accused’s arm.

3. Actions of the accused were reasonable in the circumstances

[22] There is no question that a number of the factors set out in s. 34(2) of the Criminal Code would weigh in favour of a finding that the accused’s action of stabbing the victim to the neck was not reasonable in the circumstances, notably:

• the use of a broken beer bottle as a weapon;
• there is no indication that the victim was armed;
• Dr. Walker’s evidence that severe force was used in stabbing the victim;
• the victim being stabbed to the neck;
• according to witness Myers’ evidence, the victim had limited involvement in the conflict, if any;
• there was no history of violence between the victim and the accused;
• there is no evidence in regards to the victim’s actions which prompted the accused’s actions;
• there were other means available to the accused including remaining inside the bar and seeking assistance from the police.

[23] These factors are compelling reasons why the accused’s action in stabbing the victim as he did was not reasonable in the circumstances. However, the Court’s task is to decide whether there is a basis in the evidence to support the notion that his action was reasonable in the circumstances. Any doubts must be resolved in favour of leaving the defence with the jury. While barely meeting the threshold, the Court finds that the following considerations support the third essential element of self-defence, namely, that the accused acted reasonably in the circumstances:

• his affirmation to the police that the victim is the one who had menaced him the most;
• his affirmation that he was confronted by three individuals and that the victim was one of this group;
• Katherine Bray’s testimony that the five males had exited the bar at the same time and that the fight started within seconds;
• the fact that witness Myers also used a beer bottle in striking the accused.

C) Rolled-up instruction

[24] As already noted, the providing of a rolled-up instruction as sought by defence was not opposed by Crown counsel. The Court agrees that the evidence warrants such an instruction.

[25] The Court is guided by the following words of the Ontario Court of Appeal in R. v. Flores, 2011 ONCA 155, [2011] O.J. no. 870, at para. 73:

“73. As a prophylactic against a compartmentalized approach to the evidence, we require trial judges to remind jurors, in cases like this, that they should consider the cumulative effect of all relevant evidence in determining whether the prosecution has proven beyond a reasonable doubt either of the fault elements required to make an unlawful killing murder…Although jurors may reject each discrete defence, justification or excuse, they may have a reasonable doubt about the state of mind required for murder on the basis of the cumulative effect of the whole of the evidence…”

[26] Accordingly, the Court instructed the jury to consider the cumulative effect of all of the evidence in deciding whether the Crown has proven the required mental intent for murder beyond a reasonable doubt. Reference was made to the following:

• provocation;
• intoxication;
• fear; and
• suddeness.

4. Limiting instructions as to the accused’s after-the-fact conduct

[27] The Court’s view is that the jury should not be provided with the “no probative value” instruction requested by defence in regards to the accused’s after-the-fact conduct.

[28] The impugned after-the-fact conduct includes the following:

• the accused left the scene;
• he walked to his friend’s home;
• he told her not to call the police;
• he wanted to wash his clothing;
• he left his clothing at his friend’s home;
• he did not contact the police.

[29] The instructions to the jury on this issue will be directed to the following:

• the after-the-fact conduct was relevant to the issue of whether the accused acted in self-defence; his conduct could be used to infer his awareness of having committed a culpable homicide as opposed to having acted in lawful self-defence;
• it cannot be used to infer the required intent for murder;
• it is relevant to the issue of the accused’s intoxication and ability to reason;
• it is a type of circumstantial evidence from which inferences may be drawn; it is for them to decide and they should consider other explanations for the conduct.

[30] The Court has considered the following cases on this issue:

• R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433
• R. v. Lam, [2000] O.J. no. 1770
• R. v. Robinson, 2017 ONCA 645, [2017] O.J. no. 4142
• R. v. Hill, [2015] O.J. no. 4758

The Honourable Justice R. Laliberte 2019/01/08 Released: 2019/01/08