Court File and Parties
COURT FILE NO.: 19-6279 DATE: 2024/01/23 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – Donald Musselman Accused
Counsel: Matthew Geigen-Miller and Lisa Miles, for the Crown Leo Russomanno and Kim Hyslop, for the Accused
HEARD: December 4, 2023
Reasons for Ruling Air of Reality: Self-Defence (Defence of Another Person)
ANNE LONDON-WEINSTEIN J.
[1] Donald Musselman is charged with the second-degree murder of Markland Campbell on June 7, 2019. He testified in this trial that he was not the shooter, but I.A. his associate was the shooter. I.A. also testified that he, and not Donald Musselman, shot Markland Campbell after Mr. Campbell threatened David Vizigiro with a weapon in a sudden altercation in the ByWard Market.
[2] The Applicant’s position is that there was an air of reality to self-defence, in this case, defence of another person. The Respondent’s position is that there was no air of reality to the defence of another person, as Mr. Musselman testified that he was not the shooter, therefore there was no evidence of his purpose in shooting the deceased. Further, since the defence of provocation was also left with the jury, while this was not expressly argued by the Crown, there is an argument to be made that the state of mind for defence of another is in contrast to the state of mind of one who is acting under provocation. During the trial, I ruled that there was both an air of reality to provocation and defence of another person in this case. I indicated that I would provide reasons for that ruling. These are those reasons.
[3] There was evidence in the trial from Reanna Campbell that David Vizigiro and Donald Musselman were close friends. There was evidence that there was a sudden altercation between Markland Campbell and David Vizigiro and that Mr. Campbell was shouting Mr. Vizigiro’s name repeatedly and angrily. A partially open knife with Markland Campbell’s DNA was found near where he fell. Reanna Campbell said that it was a knife which her father always carried. There was evidence from eyewitnesses that gave rise to an inference that Donald Musselman was the shooter. The gun used in the shooting was discovered in Mr. Musselman’s bedroom in the aftermath of the shooting.
Elements of self-defence (defence of another person)
[4] A successful claim of self-defence, or defence of another person, involves a consideration of three elements: (1) a reasonable perception of force or a threat of force to oneself, or another person; (2) a defensive purpose for the accused’s act; and (3) an objective determination of the reasonableness of the accused’s act.
[5] Section 34(1) of the Criminal Code, R.S.C. 1985, c. C-46, reads as follows:
(1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
[6] The test in s. 34, as described in R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 6, requires the following three elements:
Reasonable belief (s. 34(1)(a)): the accused must reasonably believe that force or threat of force is being used against him or someone else;
Defensive purpose (s. 34(1)(b)): the subjective purpose for responding to the threat must be to protect oneself or others; and
Reasonable response (s. 34(1)(c)): the act committed must be objectively reasonable in the circumstances.
[7] Section 34(2) sets out nine non-exhaustive factors that shall be taken into account when considering if the accused’s act was reasonable in the circumstances under s. 34(1)(c).
[8] Expressed in another way, the elements can be thought of as: (1) the catalyst; (2) the motive; and (3) the response: R. v. Khill, 2021 SCC 37 at para. 51.
Considerations regarding air of reality test
[9] The air of reality test is an integral one which the trial judge as gatekeeper must use to screen, based on the record, what defence(s) the jury is entitled to consider in reaching a verdict: Cinous, at paras. 51, 55.
[10] The burden to raise an air of reality is evidential and not persuasive. The standard to be applied is whether there is evidence upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true: Cinous, at paras. 52, 65.
[11] All defences that have an air of reality, must be put to the jury, even if not raised by the defence. No defence is to be put to the jury that lacks an air of reality, even if it is the accused’s only path to an acquittal: Cinous, at para. 51.
[12] If any element of a defence lacks an air of reality, the defence shall not be put to the jury: Cinous, at para. 93, 97. Defences without a sufficient evidentiary foundation may not be put to the jury. The trial judge assumes the version of the evidence must be favourable to an accused to be true: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 20.
[13] The trial judge is prohibited to weigh, in any way, direct evidence. However, if the evidence in whole or in part, is circumstantial, the trial judge may engage in a limited weighing of the evidence for the purposes of deciding whether there is an air of reality: Cinous, at paras. 88-91; R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at paras. 23-25.
[14] As Doherty J.A. set out in R. v. Hill, 2015 ONCA 616, 330 C.C.C. (3d) 1, a limited weighing focusses on whether the evidence regarded as a whole is reasonably capable of supporting a “credible narrative of events” that could allow a properly instructed jury to acquit based on the defence: at para. 68; R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 21. A credible narrative does not exist where the only evidence of the defence consists of isolated shreds of evidence ripped from the context of the narrative as a whole: Hill.
[15] Where there are inconsistent defences, assessment of the logic of the inconsistency is a question which is usually left for the jury to decide. The fact that a possible defence may be logically inconsistent from another possible defence does not necessarily preclude both defences having an air of reality to one or both of the defences: R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at paras. 32-34; R. v. Doucette, 2015 ONCA 583, 328 C.C.C. (3d) 211, at para. 31. In this case, the jury may accept the inferences that suggest that Donald Musselman acted under provocation, or they may reject those inferences and adopt inferences which support a finding that he acted in defence of David Vizigiro. Since the jury can accept some, none or all of the evidence of any witness and the evidence is circumstantial, the court must be cautious not to presume which inferences the jury will accept.
[16] The trial judge should “resolve any doubts as to whether the air of reality threshold is met in favour of leaving the defence to the jury”: Cairney, at para. 22; Pappas, at para. 26.
[17] The trial judge does not consider the potential success of the defence in determining whether it is to be left with the jury. The air of reality test is not focused on whether “the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day”: Cinous, at para. 54. The air of reality test is limited to deciding only whether there is a real legal issue for the jury to consider.
[18] In the present case, there was evidence from I.A. and from the Applicant that Markland Campbell applied force or the threat of force to David Vizigiro.
[19] There was no direct evidence that the Applicant shot Markland Campbell in order to defend David Vizigiro from force or the threat of force applied by Mr. Campbell. However, there are reasonable inferences available to that extent. David Vizigiro and the Applicant were close friends at the time of the shooting. There was evidence from eyewitnesses, that the shooting occurred after the altercation between Mr. Campbell and Mr. Vizigiro. There was evidence from I.A. and the Applicant that Mr. Campbell brandished a weapon to the head and neck area of Mr. Vizigiro. The Applicant did not know Mr. Campbell. There is no evidence that the Applicant was aware of the altercation which occurred earlier between David Vizigiro and I.A., and Reanna Campbell. While no other witness saw a weapon in Markland Campbell’s hand, the defence evidence must be taken to be true at this point.
[20] Given that the shooting occurred after the altercation had begun, and after the Applicant said he saw a weapon being brandished to a vulnerable area of David Vizigiro’s body, it is a reasonable inference that the Applicant shot Markland Campbell to defend or protect Mr. Vizigiro from the force being threatened or applied by Mr. Campbell.
[21] Whether it was reasonable for the Applicant to shoot Markland Campbell twice in response to the force demonstrated is a difficult aspect of the application of the air of reality test in this case. The Applicant testified that he did not shoot Markland Campbell, therefore there is a paucity of evidence on some of the factors which the jury must consider without engaging in speculation.
[22] In determining whether it was reasonable for the Applicant to shoot Markland Campbell twice, killing him, the jury is required to consider the relevant circumstances of the person, the other parties and the act, including, but not limited to the following factors set out in s. 34(2):
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful. (Not applicable in this case.)
[23] There was some evidence, which if believed, supported the inference that the nature of the force or threat of force by Mr. Campbell was a serious threat to David Vizigiro. This evidence emanated from I.A. and the Applicant. They also testified that the force was imminent. Since the Applicant testified that he was not the shooter, the jury will have to make findings of fact related to his role in the incident, including that he was carrying a loaded firearm in the ByWard Market on a busy summer evening. This will be for the jury to decide. The Applicant testified he had no role in the incident.
[24] There is evidence that both the Applicant and Markland Campbell used a weapon. The Applicant was younger and taller than the deceased. They had no prior relationship, or history of interaction. In terms of the proportionality of the person’s response to the use or threat of force, it is open to the jury to find that Markland Campbell threatened David Vizigiro. It is not for this court, but rather for the jury, to determine if that threat actually took place, and if it did, whether the Applicant’s response was proportional. While the Applicant is not required to measure the force he used in response, to a nicety, there is no evidence before this jury that he measured the force used at all. He testified that he was not the shooter. However, it will be for the jury to decide, in my view, if there were other means available to respond to the potential use of force.
[25] If the Applicant felt that his friend’s life was in danger, it is not for the court to say at this stage, that firing twice would be a disproportionate response. This will be for the jury to decide. However, given that Mr. Musselman testified that he was not the shooter, there are inferential gaps in the evidence. As result of the gaps in the evidence, the decision to leave the defence with the jury was a close call. However, looking at the evidence as a whole, I am of the view that the evidence is reasonably capable of supporting a credible narrative of events that could allow a properly instructed jury to acquit based on the defence: R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 21. If I have erred in my assessment of the state of the evidence in terms of supporting the defence, I have done so in favour of leaving the defence with the jury as I am instructed to do as the trial judge. Cairney, at para. 22; Pappas, at para. 26.
Anne London-Weinstein J.
Released: January 23, 2024