



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Paredes, 2014 ONCA 910

DATE: 20141219

DOCKET: C53209

Doherty, Laskin and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Edward Paredes

Appellant

Richard Posner, for the appellant

Lorna Bolton, for the respondent

Heard: November 17, 2014

On appeal from the conviction returned by a jury on April 1,
    2010 and the sentence imposed on October 25, 2010 by Justice M. Benotto of the
    Superior Court of Justice.

Doherty
    J.A.:

I

[1]

The appellant was convicted of second degree
    murder and sentenced to life imprisonment without eligibility for parole for 15
    years.  He appeals his conviction and sentence.  His co-accused was convicted
    of manslaughter.  He has not appealed.

[2]

The appellant shot and killed John OKeefe as
    Mr. OKeefe was walking north on Yonge Street near the Brass Rail Tavern at
    about 1:15 a.m.  The appellant and the co-accused had been removed from the
    tavern by the bouncers shortly before the shooting.   It was the Crowns
    position that the appellant, who was armed with a loaded handgun, was angry
    with the bouncers for evicting him and humiliating him in the process.  The
    Crown contended that the appellant fired the gun at the bouncers but missed and
    killed Mr. OKeefe.  Mr. OKeefe had nothing to do with the appellant or the
    events in the Brass Rail Tavern.  He just happened to be walking up Yonge
    Street.  The Crown relied on the transferred intent doctrine in s. 229(b) of
    the
Criminal Code of Canada
, R.S.C. 1985, c. C-46.

[3]

The appellant pled guilty to the included
    offence of manslaughter but that plea was not accepted by the Crown.  In his
    testimony he acknowledged that he had unlawfully caused Mr. OKeefes death and
    was guilty of manslaughter.

[4]

The appellant testified that he had not intended
    to kill or harm anyone but only intended to frighten the bouncers.  He
    testified that he fired the gun in the air to the left of the area where the
    bouncers had been standing.  According to him, the bouncers had moved back
    inside of the vestibule of the tavern just before he fired his gun.

[5]

The appellant acknowledged that he was very angry
    with the bouncers for the way they had treated him.  At the same time he
    testified that he was sufficiently in control of himself to make the decision
    to fire away from where the bouncers were positioned.

[6]

In addition to instructing the jury on the
    question of intent, the trial judge left the defence of provocation with the
    jury.  The appellants evidence, and that of his co-accused, provided an
    evidentiary basis for the defence of provocation.  The trial judge properly
    left provocation with the jury.

II

[7]

The appellant advances three grounds of appeal. 
    The first alleges that the Crown engaged in improper cross-examination of the
    appellant.  The second ground of appeal challenges the trial judges
    instructions on the evidence relevant to the issue of intent and the third
    alleges errors in the instructions on provocation.  Counsel alleged several
    specific errors in the instructions on intent and provocation.  He also
    submitted that the cumulative effect of those specific errors tilted the charge
    in favour of the Crown and rendered the trial fundamentally unfair.  The merits
    of this omnibus ground of appeal depend to a large extent, on the merits of the
    more specific grounds of appeal challenging the instructions on intent and
    provocation.  I will address the specific grounds first and then turn to the
    broader unfairness claim.

The Crowns cross-examination

[8]

In the course of a lengthy cross-examination
    Crown counsel put the evidence of various witnesses to the appellant and asked
    him whether he agreed or disagreed with that evidence and if he disagreed with
    the evidence, how his version of the events differed from the evidence of those
    other witnesses. I see nothing improper in this approach on cross-examination. 
    The Crown was entitled to put the substance of the evidence of the other
    witnesses to the appellant and to determine the extent to which the appellants
    version differed from the evidence of the other witnesses.  The Crown did not
    ask the appellant to comment on the reliability or credibility of any other
    witness.  Nor did the Crown ask the appellant to explain any differences
    between his evidence and the evidence given by the other witnesses.

[9]

The format followed by the Crown now said to
    have been unfair was the very format that defence counsel at trial insisted
    should be followed.  On at least two occasions during the cross-examination,
    defence counsel admonished the Crown for failing to put the specifics of the
    evidence of other witnesses to the appellant when asking the appellant whether
    he agreed with or disagreed with that evidence.

[10]

Obviously the Crown used the approach that it
    did in an effort to demonstrate the strength of the Crowns case by placing the
    Crown evidence beside the appellants testimony.  This may or may not have been
    effective advocacy.  It was not however improper cross-examination and did not
    in any way undermine either the appearance or the actual fairness of the trial.

[11]

Crown counsel did make one unnecessary and
    inappropriate comment in response to a comment made by the appellant during the
    cross-examination of the appellant. I need not set out the specifics of the
    comment.  On any reading the comment cannot be characterized as inflammatory.  Nor,
    as an isolated comment in an otherwise proper cross-examination could it
    possibly have affected the fairness of the trial.

[12]

I also reject the submission that the Crown
    improperly cross-examined the appellant about his attitude and behavior while
    in the Brass Rail Tavern.  It was the Crowns position that the appellant was
    playing the role of a gangster who was above the rules of the bar and the
    authority of the proprietors. According to the Crowns theory this attitude led
    to the appellants removal from the bar, which in turn precipitated the
    confrontation with the bouncers on the street.

[13]

The appellants attitude in the bar was integral
    to the narrative and theory advanced by the prosecution.  Cross-examination directed
    at the appellants conduct and attitude in the bar was appropriate.

[14]

Counsel for the appellant also suggests that the
    tone of the cross-examination was prejudicial.  He describes the
    cross-examination as distinctly abusive and mocking.  We are limited to the
    printed word in assessing this argument.  The transcript reads as neither
    abusive nor mocking.

The instructions on intent

[15]

The
    trial judge properly identified the
mens rea
required for murder.  She
    reviewed the relevant evidence, but only after making it clear to the jury that
    she did not intend to review all of the evidence and that it was their
    recollection of the evidence that mattered.  The jury clearly understood this
    direction and took it to heart as evinced by their questions requesting the
    re-reading of extensive parts of the evidence relating to the appellants ejection
    from the bar and the subsequent events.  The jurys questions leave no doubt
    that it understood that it was obliged to review the entirety of the evidence
    and make its own determination of the relevant facts.

[16]

The
    appellant makes four specific objections to the instructions relevant to
    intent.  Two relate to the failure to refer to evidence and two relate to
    comments by the trial judge that allegedly undercut the defence position on
    certain evidence.

[17]

The
    appellant submits that the trial judge failed to review with the jury the
    appellants evidence that the bouncers had gone back inside the tavern before
    he fired the gun.  Counsel also submits that the trial judge failed to review
    with the jury the evidence of the witness Smilis, an off-duty police officer to
    the effect that the appellant did not appear to aim the gun when he fired it.

[18]

A
    trial judge is not obliged to refer to every piece of evidence that is relevant
    to an issue when reviewing evidence with a jury.  Some evidence may however be
    so crucial to a proper appreciation of a specific issue, or the position of a
    party on that issue, that it must be included in the trial judges review of
    the evidence.

[19]

The
    two pieces of evidence referred to by counsel were potentially helpful to the
    appellants position that he did not fire at the bouncers.  I note, however, that
    the potential value to the defence of both answers was qualified to some extent,
    one by the nature of the question asked, and the other by parts of the
    cross-examination.  Even with those qualifications however, the evidence was
    potentially helpful to the appellant.

[20]

I
    need not decide whether the evidence not referred to by the trial judge was so
    central as to require a reference to it in her instructions on intent.  The
    trial judges failure to refer to the evidence loses its significance in the
    face of the jurys request to have testimony that included the appellants
    evidence and the evidence of Smilis re-read during its deliberations.  The
    re-reading of the evidence leaves no doubt that the jury was aware of the
    appellants evidence that the bouncers had gone back into the tavern and Mr.
    Smilis testimony that the appellant did not appear to aim the gun.  The
    relevance of that evidence to the appellants intent would be obvious to the
    jury.  I am satisfied that the jury, following the instructions given by the
    trial judge, considered all of that evidence in arriving at its verdict.

[21]

The
    appellant also argues that the trial judge unfairly undermined the appellants
    evidence that he was an accurate shot and could have hit the bouncers, had he
    desired to do so. The appellant had told the jury about his experience at the
    shooting range when being trained in the use of a firearm.  The trial judge summarized
    that evidence but then added:

There is no evidence however, of his accuracy in a situation
    where he is outside, angry, upset, running forward and then shooting.

[22]

The
    trial judges observation is self-evident and was in all likelihood unnecessary. 
    Standing alone it causes no harm.  The jury would no doubt appreciate the very
    real difference between firing a gun accurately in the controlled setting of a
    shooting range, and firing a gun accurately in the circumstances described in
    the evidence.

[23]

The
    real mischief in this kind of comment lies in its potential to suggest to the
    jury that the trial judge, by immediately following a reference to evidence
    favourable to the appellant with a Crown counterpoint, has aligned herself with
    the Crown.  The impact of the comment can however only be determined in the
    context of the entire jury instruction.  I will consider that possibility when
    addressing the omnibus unfairness claim.

[24]

The
    fourth submission relating to intent arises out of the instruction concerning
    the jurys viewing of the relevant videos.  These videos were taken from
    various surveillance cameras and presented a frame-by-frame depiction of some
    of the relevant events.  The trial judge reminded the jury that the key events
    had happened very quickly.  She noted that the frame-by-frame depiction of
    those events in the videos could suggest that the events had occurred at a much
    slower pace.  She cautioned the jury to guard against being misled by the
    videos.

[25]

The
    instruction was a proper one.  The risk identified by the trial judge was a
    real one.  It was appropriate for the trial judge to alert the jury to that
    risk.  Her comment was not calculated to assist either the Crown or the
    defence.  Indeed the appellant in his testimony repeatedly referred to the
    speed at which the events had unfolded in explaining why he did what he did and
    why he could not offer a more precise explanation for some of the events.  The
    trial judges instruction cautioning the jury against being misled by the
    frame-by-frame videos tended to reinforce the appellants evidence about the
    speed at which the relevant events had occurred.

The provocation instructions

[26]

Although
    counsel made submissions in his factum challenging the trial judges
    description of the legal elements of the defence of provocation, he did not
    pursue those arguments in his oral submissions.  I see no error in the trial
    judges description of the constituent elements of the defence of provocation.

[27]

Counsel
    for the appellant alleges several specific errors in the provocation
    instruction.  First, he submits that the trial judges failure to specifically
    advert to the defence of provocation and the evidence capable of supporting
    that defence when putting the position of the appellant to the jury, unfairly
    minimized that defence in the eyes of the jury.

[28]

This
    submission requires a reading of the entirety of the charge.  The trial judge
    explained the defence of provocation to the jury and outlined to them the
    evidence relevant to the elements of that defence.  Later in her charge, the
    trial judge summarized for the jury the positions of the parties.  In doing so,
    she read from the prepared statements provided to her by counsel.  The
    statement prepared by counsel for the appellant made no reference to
    provocation as a separate defence.

[29]

The
    trial judge is obligated to instruct the jury on all defences that arise on the
    evidence.  The jury must understand that the defence is available, the elements
    of the defence, the evidence relevant to the defence, and the position of the
    parties.  The trial judge made all of those things clear to the jury in her
    instructions on provocation.

[30]

Trial
    counsel decided not to include any reference to provocation in the statement of
    the position of the defence he provided to the trial judge.  He knew that the
    trial judge intended to read the statement to the jury as the position of the
    defence.  I do not see how it could be said that the trial judge committed
    reversible error by failing to add a reference to the defence of provocation to
    the written position of the defence provided to her by counsel.  In this part
    of her instruction, the trial judge was outlining the position of the parties
    as the parties wanted those positions put to the jury.  She might well have
    been criticized had she chosen to add a reference to provocation to the
    position as expressed by defence counsel.

[31]

Counsels
    tactical decision not to refer to provocation in outlining the position of the
    defence, did not relieve the trial judge of the obligation to properly put the
    defence to the jury.  However, she did so in the part of her instructions
    specifically directed at the defence.  There is no error in not going back to
    that defence in the part of the charge dedicated to the position of the parties
    as put by the parties.

[32]

Counsel
    next submits that the trial judge overstated the degree of loss of control
    needed to support a provocation defence.  He submits that the trial judge made
    it appear as though the appellants ability to make any decisions negated the
    defence.

[33]

I
    do not read the charge that way.  The trial judge was obligated to relate the
    evidence to the elements of the defence of provocation.  That evidence included
    the appellants evidence that although he was very angry, he remained
    sufficiently in control of himself to decide where to aim the gun when firing
    it and to deliberately aim so as to miss the bouncers.  The appellants
    description of his state of mind when he fired the gun was to some extent,
    inconsistent with the loss of self-control that is the hallmark of the
    provocation defence.  The problem for the appellant lies not in how the trial
    judge described the elements of provocation, but in his own evidence describing
    his state of mind.

[34]

Counsel
    for the appellant also argued that the instruction that the jury could look to
    the appellants evidence in determining the applicability of the defence of
    provocation was inconsistent with the instruction that the jury should look to
    the question of provocation only after finding that the appellant had the
    intent required for murder.  Counsel submitted that the jury could only find
    that the appellant had the intent for murder if it rejected his evidence as to
    his state of mind.  Consequently, that evidence would have been rejected before
    the jury reached the question of provocation and it should not have been left
    with the jury as relevant to the provocation defence.

[35]

I
    cannot accept this submission.  The Crown argued that the appellants evidence
    that he deliberately intended to miss the bouncers when he fired, should not be
    believed.  The Crown also argued that the appellants description of his mental
    state should be accepted to the extent that it demonstrated that he was in
    control of his decision-making faculties.  There is nothing inherently
    inconsistent in these two propositions.  The former speaks to the veracity of
    the appellants description of the decision he made, that is, to shoot away
    from the bouncers, and the latter speaks to the veracity of his stated ability
    to decide the direction in which he would shoot.  The Crown argued that the
    jury should believe the appellants evidence that he made a decision as to the
    direction in which he would aim and fire the gun, but should reject his
    evidence that he decided to fire the gun in a direction other than at the
    bouncers.

[36]

Counsel
    next argues that the trial judge, in referring to evidence relevant to the
    defence of provocation, should not have referred to the evidence of the
    statement that the appellant gave to the police after his arrest.  In the
    statement, the appellant had explained that he was angry with the bouncers
    because he and his co-accused had been removed from the bar and assaulted by
    the bouncers for no reason.  The appellant said nothing in the statement
    about any taunting language or insults uttered by the bouncers.  The Crown
    argued that the appellants failure to refer to the insults or taunting in his
    statement could be used by the jury in assessing the credibility of the
    appellants testimony that the bouncers had in fact insulted him and called him
    names.

[37]

The
    trial judge told the jury that it could consider that the appellants failure
    to refer to the insults or taunting in his statement to the police when assessing
    the credibility of that part of his testimony.  I think the instruction was
    correct.  The failure to mention the taunting or insults could have some
    negative impact on the credibility of the appellants testimony that he was provoked
    in part by the bouncers language.  The extent to which the failure to mention
    the taunts and insults undermined the credibility of this testimony was
    entirely for the jury.  The trial judge did not give the evidence any
    prominence, but simply referred to it in the course of an extensive review of
    different parts of the testimony relevant to the elements of the provocation
    defence.

[38]

Counsel
    for the appellant also submits that the trial judge erred when she told the
    jury that it could consider the appellants evidence about his reaction when
    robbed at gunpoint several months earlier, to assess the appellants contention
    that he had lost his self-control when assaulted and insulted by the bouncers. 
    On the appellants evidence, he had remained calm when robbed at gunpoint. 
    This argument was not made by the Crown at trial and for good reason.  The
    evidence of the appellants reaction when robbed at gunpoint could not possibly
    help the jury in its assessment of the appellants reaction in response to the
    alleged provocative conduct of the bouncers.  The two situations are completely
    different.  The appellants reaction as the victim of an armed robbery could
    not reasonably provide any insight into his reaction when allegedly taunted and
    assaulted by the bouncers.  Furthermore, the appellants reaction on being
    robbed was not developed in the evidence at trial.  That evidence was offered
    solely to explain the appellants decision to carry a gun when he went to the
    bar. Neither the Crown nor the defence saw the evidence as having any relevance
    to provocation.  The appellants limited testimony about the earlier robbery
    reflects very narrow ground upon which the evidence was advanced.

[39]

Standing
    alone, the trial judges instructions that the evidence of the robbery was
    relevant to whether the appellant had lost his self-control when he fired the
    shot that killed Mr. OKeefe would not amount to reversible error.  I am
    satisfied that the jury would appreciate the pronounced differences between the
    two situations and gain little insight into the appellants state of
    self-control when he fired the shot that killed Mr. OKeefe by referring to his
    level of self-control when he was the victim of an armed robbery.  However, the
    appellant points to this instruction as one example, perhaps the best example,
    of the trial judge using the jury instructions to advance the case for the
    Crown.  This leads to a consideration of the omnibus unfairness argument.

Did the jury instructions render the trial unfair?

[40]

As
    set out above, my review of the specific arguments raised by the appellant
    reveals one error in the jury instructions.  I have also referred to one other
    instance when it could reasonably be said that the trial judge appeared to be
    arguing the Crowns case (see
supra
para 21).  Apart from those two
    passages however, the jury instruction was even-handed, thorough and legally
    correct.

[41]

Allegations
    of unfairness necessarily engage an assessment of the charge as a whole. Only
    through that assessment can an appellate court get a true sense of whether a
    trial judge has deliberately or inadvertently placed her thumb on the Crowns
    side of the scales of justice.  Having read the jury instructions several
    times, I do not get the sense that the trial judge was steering the jury in the
    Crowns direction.  Rather than improperly invading the jurys domain, the
    trial judge repeatedly brought home to the jury its obligation to thoroughly
    review all of the evidence before making the findings necessary to their
    verdict. The entirety of the record, particularly the questions put by the jury
    concerning the details of the evidence, satisfies me that the jurys verdict is
    a reflection of a full and independent analysis of the evidence.

III

The sentence appeal

[42]

The
    appellant received the mandatory sentence of life imprisonment.  Only one
    member of the jury recommended an increase in parole ineligibility beyond the
    10 year minimum.  That juror recommended a 12-year period of parole
    ineligibility.  The trial judge imposed 15-year period of parole ineligibility.

[43]

The
    trial judge properly emphasized the tragic circumstances of the murder and the
    harm caused by the appellant.  Mr. OKeefes senseless death is a profound loss
    not only to his family and friends but to the community as a whole.  We are all
    worse off without Mr. OKeefe.

[44]

This
    court and others have repeatedly identified gun violence, particularly in
    Toronto, as a pressing and very serious problem.  The need to denounce and
    deter the appellants conduct, justified some extension of the period of parole
    ineligibility.

[45]

There
    are however features of this case which distinguish it from the vast majority
    of crimes involving gun violence, particularly homicides.  The appellant had a
    licence for the gun and had purchased the gun lawfully, although his possession
    of the loaded gun in the bar was itself a serious crime.  Most significantly,
    the appellant who was 22 years old at the time of the offence had no criminal
    record and no prior involvement with the criminal law or illicit gun use.  This
    offence was very much out of character for the appellant.  Bearing in mind the
    appellants age, his antecedents and his strong family support, there is good
    reason to think that the appellant could one day be a responsible and
    productive member of the community.

[46]

This
    court must show deference the trial judges balancing of the competing factors
    relevant to sentencing.  Crown counsel relies on that deference and points to
R.
    v. Danvers
, [2005] O.J. No. 3532, as a case that is similar to this one in
    many ways.  In
Danvers
, this court reduced an 18-year period of parole
    ineligibility to 15 years.

[47]

Danvers
is a helpful precedent.  Like this case, it is an example of gun violence that
    led to murder.  The accused in
Danvers
however, had an extensive
    criminal record including gun-related offences.  His personal circumstances
    were, in most respects, the polar opposite of this appellants.  The accused in
Danvers
showed little potential for rehabilitation.

[48]

With
    respect, I think the trial judge lost sight of the appellants personal
    circumstances and his real potential for rehabilitation and concentrated
    exclusively on the need for deterrence and denunciation.  While those principles
    deserved paramount consideration, they were not the only principles to be
    considered.  In my view, giving proper emphasis to denunciation and deterrence while
    also factoring in the appellants real rehabilitative potential would yield a
    parole ineligibility period of 12 years.  I would vary the sentence
    accordingly.

Conclusion

[49]

I
    would dismiss the conviction appeal.  I would allow the sentence appeal and
    vary the sentence to life imprisonment without eligibility for parole for 12
    years.

Released: December 19, 2014 (D.D.)

Doherty J.A.

I agree John Laskin J.A.

I agree C.W. Hourigan J.A.


