COURT FILE NO.: J-15-4910
DATE: 2020/11/19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. O’Brien & A. McLean, for the Crown
- and -
JOHN JOSIPOVIC and MATO JOSIPOVIC
A. Furgiuele and A. Ruffo for the accused, John Josipovic
J. Rosen and S. Smordin for the accused, Mato Josipovic.
HEARD: November 12, 2020
PRE-CHARGE CONFERENCE- RULING ON PROVOCATION
A.J. GOODMAN J.:
Introduction:
During the course of the pre-charge conference, both accused argued that the statutory excuse of provocation ought to apply to his particular circumstances as a participant in the shooting of the deceased.
The accused, John Josipovic (“John”) and his brother, Mato Josipovic, (“Mato”) are charged with second-degree murder in the shooting death of Lou Malone (“Malone”) in the early morning hours of November 9, 2013. At the first trial, the two accused were acquitted of first-degree murder but convicted of second-degree murder. On July 31, 2019, the Court of Appeal for Ontario quashed the convictions for both accused and ordered a re-trial.
At this trial, John testified in his own defence. Mato chose not to testify or call evidence. At the conclusion of submissions at the pre-charge conference, I ruled that there was an air of reality to the statutory and legal excuse of provocation as it pertained to the principal party, John. However, I concluded that there was neither any basis in law nor any air of reality for provocation as it related to the aider, Mato.
I advised the parties that brief written reasons would be provided. These are my reasons.
Discussion:
The evidence for this application and the principles that will be applied are taken, with gratitude, from the Crown’s factum with necessary modifications.
A defence is only to be considered by the jury when each of its constituent elements has an air of reality. An air of reality exists if a properly instructed jury, acting reasonably, could acquit the accused on the basis of the defence: R. v. Cinous, 2002 SCC 29, at para. 51.
The air of reality test was succinctly summarized by the Court of Appeal in R v Grant, 2016 ONCA 639 at para. 58:
a. The trial judge should consider all the evidence but assume the evidence relied on by the accused is true. The trial judge should not make findings of credibility.
b. The air of reality test applies to each element of a defence. As long as each element is supported by some direct evidence, or may be inferred from circumstantial evidence, the trial judge must put the defence to the jury.
c. The trial judge should not decide the substantive merit of the defence, or even whether the defence is likely or not likely to succeed. Whether the defence has merit is for the jury to decide. The trial judge should simply determine whether there is a “real issue” that should be left for the jury.
d. If the defence has an objective reasonableness component – as self-defence does – that component cannot be established by direct evidence. The trial judge must decide whether it can reasonably be inferred from circumstantial evidence; that is, evidence from which the fact in issue can be inferred.
e. To assess whether circumstantial evidence is reasonably capable of supporting the inferences the accused wants the jury to draw, the trial judge is entitled to engage in a “limited weighing” of the evidence.
- A jury must not be left to needlessly grapple with self-defence or provocation in a case in which its application would prove manifestly unreasonable or where an evidentiary foundation simply does not exist: Grant, at paras 77-84.
The Partial Defence of Provocation:
The partial defence of provocation was created at common law hundreds of years ago. Morals as they stood then suggested that the sanction for intentional killing or murder – death – was too harsh in situations of violation of honour leading to inflamed passions. The defence is partial because it only comes into play after the Crown has successfully proven beyond reasonable doubt that the offender intended to kill. If successful it reduces liability to the included offence of manslaughter: R. v. Tran, 2010 SCC 58 at paras. 13-19.
The refinement of the partial defence over time at common law led to its inclusion in the original 1892 Criminal Code. The wording found in s. 232(2), at the time of the offence in this case, “remains substantially unaltered” from the original. This governing provision has been interpreted to include dual elements, each composed of dual parts – a two-fold objective element and a two-fold subjective element:
The objective element may be viewed as two-fold: (1) there must be a wrongful act or insult; and (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control.
the subjective element can also be usefully described as two-fold: (1) the accused must have acted in response to the provocation; and (2) on the sudden before there was time for his or her passion to cool.
The victim’s instigating conduct must have significant impact – from everyone’s point of view. And, it must come in circumstances which were spontaneous and unforeseeable to the accused. Care must be taken in assessing “contextual factors” “so specific to the accused” so that they do not turn “the test into a purely subjective one”: Tran, at paras. 40-41, Grant, at paras. 90-96.
The suddenness component was introduced into the defence as a way of distinguishing a response taken in vengeance from one that was provoked. Therefore, suddenness applies to both the act of provocation and the accused’s reaction to it. The wrongful act itself must be sudden, in the sense that the accused is unprepared for it and it must make an unexpected impact on the accused.
The Crown says that there is no air of reality on the suddenness component when an accused anticipates and prepares for a risk to materialize. An accused cannot claim surprise to a risk they considered and armed themselves to confront: R. v. Phillips, 2017 ONCA 752 at paras. 152-153.
Air of Reality for Provocation – John Josipovic
The Crown says that there is no air of reality to the partial defence of provocation for John as the conduct fails to satisfy the suddenness requirement necessary for the defence to succeed. The provocative conduct must be sudden in the sense that it strikes upon a mind unprepared for it. The evidence in this case demonstrates that John Josipovic was all too familiar with threatening conduct from Lou Malone and therefore cannot argue that the threats uttered by Lou were sudden and unexpected.
By November 9, 2013 John and his family had been directly threatened by Malone. A review of his testimony establishes that:
a. On November 1 Lou told him he had fucked up and John had a problem because Lou’s name had come up.
b. On November 3 Lou slowly drove by his house, pulled a U-turn and drove by slowly again. According to John this was an implicit threat and told him that Lou was willing to go after his family or shoot up his house. At this point he testified that Lou was a problem and a threat to him.
c. As a result of that drive by John began to fortify his house and stash weapons throughout the house. He testified that the drive by meant there would be an attack or home invasion at his house.
d. John testified that around the time of the anniversary party he “was expecting something would happen”.
e. During the evening of Nov. 6 he hears “bang, bang, bang” and a car floored and driving away. He believed someone had shot 5-10 rounds at his house.
f. On Nov. 7 he meant with Steve Karman who claimed he had nothing to do with what happened at the house – confirming that Lou was responsible for the drive by shooting. Karman also told him that they knew where John’s son worked out. John interpreted this to be a threat towards his son as well.
g. Later that day he met with Louie at Stonechurch and Upper Ottawa.
h. During that meeting Lou is ranting and that he fucked up by using his name.
i. Lou attacks him as he’s driving away.
j. Later that day John has a conversation with his cousin John. He attends his parents’ barn to retrieve his shotgun. He’s scared.
k. Next John gets jolted out of bed by a call from his brother who tells him he’s just “took some shots, if I don’t make it back, Louie was the last person I was with”
l. He believed his brother had been shot by Lou
m. His brother tells him that Louie put a gun to his chest and tried to abduct him.
It is true that all of this threatening, provocative conduct occurred prior to the confrontation on Robbins Ave.
In comparison, the Crown says that threats from an unarmed, dog walking, Malone pales in comparison to the conduct described over the eight days prior. The Crown submits that John cannot succeed in showing that the conduct was sudden in any concept of the term. This was a threat that John had been anticipating. He had fortified his home and armed himself with a shotgun for this very scenario. Indeed, one cannot prepare for a risk to materialize, then turn around and claim surprise when it does materialize.
As the Court of Appeal held in Phillips, an accused cannot claim surprise for a risk they armed themselves to meet.
While the Crown makes some very powerful, persuasive and valid points, I am left to conclude that there is an air of reality to the claim of provocation as it applies to John.
John testified that he reacted to the threatening language from Malone at 35 Robins and was not prepared for it. In re-examination, John testified that notwithstanding that prior threats were made to him from Malone, along with an assault inflicted upon him a day earlier by Malone; this was the first time that explicit threats were made towards John’s wife and family. Frankly, while I may be skeptical as to whether provocation will be the end result of the jury’s findings, as the totality of the evidence may sustain the Crown’s disproving provocation based on the underlying factual scenarios and the chronology of events as they unfolded; that determination ought to remain with the jury. Overall, I accept that there is an air of reality to the excuse of provocation and find that Phillips is somewhat distinguishable on its facts. Frankly, this is a very close call that I elect to exercise in favour of the principal actor, John.
Availability of Provocation for Mato Josipovic:
It appears that the wording of s. 232 limits the partial defence of provocation to an individual who both possesses the intent for murder and acts upon that intent in carrying out the homicide. Therefore, I agree with the Crown that the partial defence of provocation is not available for Mato as a matter of law.
Before considering the availability of provocation, a brief review of the basis of liability for an aider is required.
There is no distinction between principal offenders, aiders, or abettors in Canadian criminal law. Section 21(1) of the Criminal Code renders all parties to an offence equally liable for the offence committed by the principal offender. However, the actus reus and mens rea required for criminal liability as an aider or abettor is different than the actus reus and mens rea of the principal offence: R. v. Briscoe, 2010 SCC 13 at para. 13.
Section 21(1)(a) of the Code attracts criminal liability to an accused who actually does, or contributes, to the conduct that constitutes the actus reus of the offence while possessing the required mens rea.
Section 21(1)(b) differs in that a co-accused may be held criminally liable as an aider if they do, or omit to do, anything with the purpose of assisting the principal offender in committing the principal offence. The actus reus required to attract criminal liability under s. 21(1)(b) is doing “something that assists” the perpetrator in committing the offence. Broadly speaking, the aider must act to “assist or help the actor”: Briscoe, at para. 14.
The mens rea requirement under s. 21(1)(b) has two components: intent and knowledge. First, the accused must have intended to assist the principal in the commission of the offence. The second component requires that the accused know that the perpetrator intends to commit the crime. As it relates to murder, s. 21(1)(b) requires that the aider know that the principal offender intended to cause death, or intended to cause bodily harm that he [the principal offender] knew was likely to cause death, and was reckless as to whether death ensues.
In this case, Mato’s liability flows from s.21(b), so while he is equally liable for this murder, he does not necessarily have the same mens rea and actus rea of his brother, the principal shooter in this killing.
Notwithstanding the able arguments advanced by Mr. Rosen, I agree with the Crown that this distinction is important as provocation only applies once the mens rea and actus reus for murder have been established. This means a person can only benefit from the protection offered by s. 232 if they intended to cause the victim’s death and then did so based on the well-known tests to establish the requisite state of mind.
In my view, this is made clear from both the wording of s. 232 and the Supreme Court’s decision in Tran.
Section 232 states that:
Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. [emphasis added]
Provocation applies to the person who committed the murder – not the party in aided in the murder.
Similarly, Tran at para. 10 describes the defence in the following terms:
As the opening words of the provision make plain, the defence will only apply where the accused had the necessary intent for murder and acted upon this intent. Parliament thus carefully limited the application of the defence. The requirements of the defence contained in s. 232 have been described variously by the Court as comprising either two, three or four elements.
Counsel could not find a single reported case to support his proposition that provocation is available to a party to the offence and may lie with the aider of a crime of murder.
Indeed, an aider’s position is different. They do not cause the victim’s death, nor do they necessarily intend the victim to die. Instead, all that is required as an aider is that they assist the principal offender in causing the victim’s death while knowing that the principal offender intended to cause the victim’s death. I find that provocation applies to the mens rea of murder – to the principal, not the mens rea of aiding in the commission of a murder.
Air of Reality – Mato Josipovic:
However, if I am wrong in my interpretation of the provision, notwithstanding the apparent legal impediment to the defence of provocation for a party to the offence, there remains no air of reality to the excuse of provocation as it applies to Mato on the facts before me.
There is no direct evidence as to Mato’s reaction or state of mind as a result of the Malone threats.
Therefore, I must look at the actions of Mato and all of the evidence to decide whether a circumstantial inference is available as to provocation.
The evidence establishes that as a result of the insult, Mato shifts from the passenger seat into the driver’s seat. He then:
a. Drives down Cannon towards St. Ann school and picks up his brother;
b. He pursues Lou Malone as driver of the truck;
c. Waits as his brother exits and fires in the area of Britannia and Kenilworth;
d. Once his brother returns to the truck he then continues the chase north on Kenilworth towards Hope Avenue;
e. Ultimately cutting off Malone’s escape just South of Hope Avenue;
f. Either as a result of purposely using the truck to “corral” him as described by Jason Cavanagh and Judson Carter;
g. Or, as a result of the U-Turn executed by John in the passenger seat.
In my opinion, there is no version of events that support an inference that Mato aided in the killing of Malone on the sudden before time for his passion to cool. He didn’t do anything suddenly. He drove the truck in a manner that assisted his brother in killing Malone with a shotgun. Neither of which are compatible with sudden actions taken as a result of provocative conduct.
The only question is whether Mato possessed the intent necessary to be guilty as aider to second degree murder. In the end, there is no support for the inference of a provoked response on the part of Mato.
While not determinative, I observe that my finding is consistent with the Court of Appeal’s ruling in this case. While the evidence presented in this case may be at variance with that offered at the previous trial, including the fact that Mato provided testimony at the last trial but chose not to testify at this trial, essentially Doherty J.A. for the court found it doubtful there was an air of reality to the defence of provocation as it applied to Mato.
Conclusion:
In respect of John, I find that there is an air of reality for the legal excuse of provocation as provided in s. 232 of the Criminal Code. There is neither any basis in law nor any air of reality for the statutory excuse of provocation as it pertains to Mato, as party to the offence.
While I have addressed the provisions of s. 232 in this ruling, Malone’s alleged threats and their cumulative or specific effect, if any, will be left to the jury as they determine whether either or both accused had the requisite state of mind to commit murder.
A.J. Goodman J.
November 19, 2020
COURT FILE NO.:J-15-4910
DATE: 2020-11-19
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
JOHN JOSIPOVIC AND
MATO JOSIPOVIC
PRE-CHARGE CONFERENCE- RULING ON PROVOCATION
A.J. Goodman J.
DATE: November 19, 2020