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 on Air of Reality to Provocation

Anne London-Weinstein J.

[1] The Applicant is charged with second degree murder in the death of Markland Campbell on June 7, 2019. The Applicant testified that he did not shoot Markland Campbell, but I.A. did. I.A. also testified that he, and not Mr. Musselman, shot Markland Campbell. The Applicant testified that he was in the ByWard Market area for the first time after being shot in the face, right arm and hand on January 16, 2019.

[2] The Applicant testified that he was involved in the drug trade, and although he was in possession of Fentanyl and Percocet that night, he was not trafficking. He testified that Mr. Campbell confronted his friend David Vizigiro and brandished a weapon at Mr. Vizigiro. Mr. Musselman thought it was either a gun or a knife. I.A. testified in a similar fashion. The evidence from the eyewitnesses, including Reanna Campbell, the daughter of Markland Campbell, was that the incident unfolded very quickly.

[3] The Respondent argues that because the Applicant testified that he was not the shooter, there is no evidence of the accused’s state of mind; that is, there was no evidence that he must have acted on the sudden before there was time for his passion to cool. I ruled at the time that there was an air of reality to provocation on the evidence available to the jury in this case and provocation was left with the jury. I indicated I would provide reasons for that ruling. These are those reasons.

[4] In this case, the question to be determined is whether there is evidence upon which a properly instructed jury acting reasonably, and believing the evidence to be true, could find that the Crown has failed to prove beyond a reasonable doubt that the Applicant was not provoked by the deceased.

[5] While the defence did not bring a pre-trial Charter application, after the issue of the constitutionality of the July 2015 amendment to s. 232(2) of the Criminal Code governing the defence of provocation was brought to counsel’s attention, the court was provided with the decision of Laliberté J. of this court in R. v. Mujber, [2020] O.J. No. 6126 (S.C.). In Mujber, the court held that the introduction of the more stringent basis for the triggering of provocation violated an accused person’s liberty interest under s. 7 of the Charter and that such deprivation was not in accordance with the principles of fundamental justice. Nor can such violation be justified under s. 1 of the Charter. Having read the thoughtful and well-reasoned decision of my former colleague Laliberté J., I concur completely with his reasoning. Therefore, the requirement of the commission by the victim of an indictable offence punishable by five or more years of imprisonment is of no force and effect. The appropriate remedy is to sever this portion of the legislation. The court in Mujber explained this at paras. 73-74:

Sec[tion] 232(2) will therefore stand as follows:

Sec[tion] 232(2): Conduct of the victim that is of such a nature as to be sufficient to deprive an ordinary person of the power of self- control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

Severance of the above-noted portion of the amendment is seen as the most appropriate judicial measure to best vindicate the primacy of the Charter and preserve the right to liberty under s. 7.

[6] The four elements of the defence of provocation under s. 232 of the Criminal Code, R.S.C. 1985, c. C-46, are as follows:

1. There must be a wrongful act or insult;
2. The wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control;
3. The accused must have acted in response to the provocation; and
4. The accused must have acted on the sudden before there was time for his or her passion to cool.

[7] The first two components constitute the “two-fold” objective element described in R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 25. The latter two components make up the “two-fold” subjective element of the defence: Tran, at para. 36.

[8] In Tran, at para. 11, Charron J. noted the following: “While it may be conceptually convenient in any given case to formulate the requirements of the defence in terms of distinct elements and to treat each of these elements separately, it is important to recognize that the various components of the defence may overlap and that s. 232 must be considered in its entirety.”

[9] While the Applicant testified that he was not the shooter, the jury is free to reject his evidence on this point. In fact, the Crown will urge the jury to reject the Applicant’s evidence. The jury is free to accept some, none or all of the evidence of any witness, including that of the Applicant. As the trial judge, I am to assume the evidence to be true: R. v. Land, 2019 ONCA 39, 145 O.R. (3d) 29, at para. 77, citing Pappajohn v. The Queen, [1980] 2 S.C.R. 120, at p. 127; R. v. Bulmer, [1987] 1 S.C.R. 782, at p. 790; and R. v. Park, [1995] 2 S.C.R. 836, at para. 13. The trial judge is not to evaluate the credibility of the evidence that the defence relies upon, or to consider the strength of the evidence: Land, at para. 77.

[10] When determining whether there is an air of reality to a defence, the trial judge is required to disregard the contradictions in the defence evidence and examine whether the most favourable version of events supported by the evidence is sufficient. This does not mean that the trial judge is to pull unrelated pieces of evidence out of context to create the possibility of a provocation defence. The version advanced must be “a coherent narrative that is grounded in the evidence in the case”: Land, at para. 80, citing R. v. Ariaratnam, 2018 ONCA 1027, 369 C.C.C. (3d) 522, at para. 11. The fact that the version relied on is one of several competing narratives offered by the accused will not defeat the air of reality: Land, at para. 80.

[11] What then, is the defence evidence taken at its highest in this case? The Applicant testified that after walking, everything happened very fast. As his group walked from the Wine Rack back to the remainder of the group gathered at the EQ3 store, the Applicant heard someone yelling, “Who is Rico? Who is Rico?” The Applicant looked over and said to Mr. Vizigiro, “who is calling your name?” Mr. Vizigiro said, “I don’t know.” The Applicant said that the next thing he knew he felt a commotion at his face and saw Mr. Vizigiro in a struggle with Markland Campbell.

[12] The Applicant did not know Markland Campbell. He saw Markland Campbell pull out something shiny and silver and point it to the head and neck area of David Vizigiro. He heard a shot and saw I.A. shoot Markland Campbell a second time. He saw David Vizigiro run away. The Applicant said that he was scared and frozen in place for a second. He believed that Markland Campbell had hit David Vizigiro. He could not tell at the time what the object was which was put to David Vizigiro’s head. He had been shot before and was scared at the time that David Vizigiro and Markland Campbell were in contact with one another. After he heard the second shot he froze. In January of 2019 when he was shot, he was shot once in the right side of his jaw and the bullet shattered his jaw and neck. He was shot in the upper bicep and his elbow was shattered. He was shot in his hand between his index finger and middle finger.

[13] Reanna Campbell testified that her father was shouting loudly and was upset. Eyewitnesses observed an altercation unfolding very quickly. Ms. Hanscamp testified that she was surprised at how quickly that altercation escalated. Reanna Campbell testified that the Applicant shot her father so quickly that there was not even time for conversation.

[14] A partially opened knife, which Reanna Campbell testified her father always carried with him, was located near where the victim fell. The knife was capable of causing death, according to the evidence of the forensic pathologist, Dr. Milroy. The knife contained the DNA of Markland Campbell. The evidence established that David Vizigiro and the Applicant were close friends of longstanding.

[15] The evidence of the defence must be taken at its highest. It is not my role, at this threshold stage, to assess whether the defence is likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue: R v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 54; R. v. Ewanchuk, [1999] 1 S.C.R. 330.

[16] Where there is a lack of direct evidence on an element of the defence, the question becomes whether factual inferences can be drawn which provide an air of reality to the defence. A judge may be required to weigh the evidence in a limited sense, in the sense of assessing whether it is reasonably capable of supporting the inferences that the accused would ask the jury to draw. This weighing is limited.

[17] The judge does not ask whether she would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only if the evidence, if accepted, could reasonably support the suggested inferences: Cinous, at paras. 90-91.

[18] There was direct evidence of the fact that Markland Campbell was involved in an altercation with David Vizigiro and there was circumstantial evidence, which taken at its highest constituted brandishing a knife or another weapon, perhaps even a gun, at David Vizigiro’s head. In my view, this was a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control.

[19] I also permitted the Applicant’s age, which was 18, and the fact that he had been recently shot, to be considered on the modified objective part of the test. In my view, being injured in that manner was of sufficient special significance that it would have impacted the Applicant’s reaction to seeing his friend be attacked. I provided separately released reasons for that ruling.

[20] I bear in mind that I must always assume the defence evidence to be true, and to take it at its highest in assessing whether the threshold of air of reality has been met.

[21] In terms of the subjective requirement that the Applicant acted in response to the provocation, and acted suddenly before there was time for his passion to cool, while there is no direct evidence from the Applicant on this issue and the jury may not transpose the actions of I.A. for that of the Applicant, in my view, the inference is certainly reasonably available that the Applicant was responding to the wrongful act or insult.

[22] The shots came immediately after the altercation. The Applicant testified he was frightened, having been shot himself. The Applicant did not know Markland Campbell. In my view, it is a reasonable inference that his response in shooting Markland Campbell, came in response to the provoking act, the wrongful act or insult.

[23] In relation to whether the Applicant reacted suddenly, before there was time for his passion to cool, there was evidence from Ms. Campbell and others that matters unfolded very quickly. While Ms. Campbell denied that her father brandished a knife, both I.A. and the Applicant testified that a weapon was brandished against David Vizigiro’s head or neck area.

[24] Ms. Campbell testified that the shots came almost immediately at the point of her father shouting and encountering the group, including the Applicant. In my view, the Applicant’s state of mind can be inferred from the surrounding circumstances of the shooting. If the jury rejects the Applicant’s evidence that he was not the shooter, the circumstances surrounding the shooting, including the evidence of the extremely compressed time frame between confrontation and shooting, support the inference that the Applicant reacted quickly to the shooting before there was time for his passion to cool.

[25] As indicated earlier, it is not my role at this stage to determine the ultimate success of the defence, given that the accused testified that he was not the shooter, but rather to assess whether the reasonably available inferences support the elements of provocation in this case. In my view they do and the defence of provocation was left with the jury.

Anne London-Weinstein J.

Released: January 23, 2024