



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cote, 2018 ONCA 870

DATE: 20181031

DOCKET: C62515

Benotto, Roberts and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gaetan Cote

Appellant

Paul Calarco, for the appellant

Lisa Joyal, for the respondent

Heard: October 9, 2018

On appeal from the conviction entered on November 25,
    2015, and the sentence imposed on January 11, 2016, by Justice Irving W. André
    of the Superior Court of Justice, sitting with a jury, with reasons reported at
    2016 ONSC 226.

By the
    Court:

[1]

The appellant and his friend, James Jim McQuhae, were in a fight. The
    altercation began as a fist fight and became a knife fight; McQuhae was stabbed
    and died. The appellant admitted causing his death. The appellant was convicted
    by a jury of second-degree murder and sentenced to life imprisonment without
    parole eligibility for 12 years. He appeals the conviction and sentence.

[2]

The appellant submits that the trial judge made a series of errors
    regarding the admission of evidence and in his charge to the jury. He further
    submits that the trial judge erred on sentencing by considering, as an
    aggravating factor, the appellants attempt to blame McQuhae for his death.

FACTS

[3]

The appellant and McQuhae had known each other as neighbours since the
    appellant was a teenager. At the time of his death McQuhae was 65 and the
    appellant was 51.

[4]

In December 2007, the appellant developed heart problems. The following
    May, the appellant moved into McQuhaes home in Mississauga. His heart problems
    worsened, which affected his ability to work and pay his monthly rent. In April
    2012, McQuhae told the appellant to move out. By that time the appellant owed him
    approximately $14,000. The appellant stayed with different siblings and
    eventually began living on his brothers property in Waubaushene, Ontario.

[5]

Late in the evening of June 18, 2012, the appellant drove from Waubaushene
    to Mississauga to retrieve some items from McQuhaes garage. The appellant
    testified that he found a crate of garbage sitting on his possessions in the
    garage.

[6]

Feeling upset and angry that the garbage was sitting on his possessions,
    the appellant took the crate inside and confronted McQuhae. This quickly
    sparked an argument and the appellant testified that, before [he knew] it, McQuhae
    began punching him in the back of his head and in the face. The appellant
    responded by dumping the crate of garbage on McQuhae.

[7]

The appellant testified that McQuhae then came at him. The appellant put
    McQuhae in a headlock, and they wrestled and fell to the ground. The appellant
    released him from the headlock and the men briefly separated. The appellant
    testified that as he rested on his hands and knees, trying to catch his breath,
    McQuhae approached him holding a knife. The appellant grabbed McQuhaes hand
    and the two men wrestled for control over the knife. The appellant threw McQuhae
    off balance and pushed the knife into him. The appellant testified that the
    rest was a blur. During cross-examination the appellant admitted that he
    remembered stabbing McQuhae at least three times.

[8]

The appellant left McQuhaes house and drove north. After stopping for
    gas, the appellant pulled into a parking lot in Bolton and tried to commit
    suicide using a utility knife to slash his neck. The wound to his neck stopped
    bleeding and the appellant recovered sufficiently to drive himself to a police
    station in Barrie where he arrived at approximately 2:45 a.m. At the police
    station, the appellant advised Barrie police that he thought he had hurt his
    friend in a fight after his friend attacked him with a knife. Police were
    dispatched to McQuhaes home where they discovered his body at approximately
    3:30 a.m. on June 19, 2012.

[9]

Two forensic pathologists concluded that McQuhaes death was caused by
    some combination of stabbing and compression of the neck or strangulation. He had
    been stabbed five times: twice in the chest, once in the abdomen, and twice in
    the back. The deceaseds neck was bruised, his thyroid cartilage (larynx) was
    fractured, and there were very small hemorrhages on the surface of his eyelids.
    These injuries were consistent with considerable force being applied to his neck.
    McQuhaes severe heart disease may have also contributed to his death.

[10]

The
    appellant was charged with second-degree murder.

[11]

The
    appellant argues that the trial judge erred in allowing the Crown to admit: (1)
    ante-mortem statements purportedly made by McQuhae; (2) evidence of McQuhaes
    peaceful disposition; and (3) photographs of a model depicting the blood
    spatter on McQuhaes shirt.

[12]

The
    appellant also argues that the trial judge erred in the jury charge with
    respect to self-defence, provocation, the exculpatory value of the evidence led
    by the Crown, and the
W.(D.)
analysis.

ISSUES

[13]

The appellant raises the following issues:

1.

Did
    the trial judge err in law in admitting into evidence ante-mortem statements
    purportedly made by McQuhae?

2.

Did
    the trial judge err in law in admitting evidence of McQuhaes peaceful
    disposition?

3.

Did
    the trial judge err in law in admitting into evidence photographs depicting
    possible anatomical positions of the deceased at the time of the stabbing?

4.

Did
    the trial judge err in law in failing to properly charge the jury on the
    elements of self-defence?

5.

Did
    the trial judge err in law in failing to properly charge the jury on the issue
    of provocation?

6.

Did
    the trial judge err in law in failing to charge the jury on the exculpatory
    value of evidence led by the Crown?

7.

Did
    the trial judge err in law in the
W.(D.)
instruction by isolating the appellants
    evidence and character evidence in his charge to the jury?

8.

Did
    the trial judge err in increasing the period of parole ineligibility?

ANALYSIS

Issue 1: Did the trial judge err in law in
    admitting into evidence ante-mortem statements purportedly made by McQuhae?

[14]

In
    a pre-trial ruling, the trial judge held that the Crown could present hearsay
    evidence from Todd Starr, a long-time friend of McQuhae. Starr was permitted to
    testify that approximately two or three days before his death, McQuhae told Starr
    that he was concerned that he might be on the top of the appellants kill list
    and that he was thinking of changing the locks.

[15]

The
    Crown had argued that this testimony was admissible under the state of mind
    or present intentions exception to the hearsay rule recognized in
R. v.
    Starr
, 2000 SCC 40, [2000] 2 S.C.R. 144,

or alternatively, pursuant
    to the principled exception described in
R. v. Khelawon
, 2006 SCC
    57, [2006] 2 S.C.R. 787. The trial judge relied on the latter exception to find
    this evidence admissible.

[16]

During
    trial, the evidence did not materialize precisely as expected. Instead, Starr
    testified that McQuhae was worried that [the appellant] was going to kill
    him. No evidence was offered about changing the locks.

[17]

When
    cross-examined,
Starr
adopted his earlier statement
    about McQuhae being concerned that he was at the top of the appellants kill
    list. Starr then testified that it was after McQuhae made this comment that he
    said he was worried that the appellant was going to kill him. Later in the
    cross-examination Starr said that McQuhaes concern about being at the top of the
    appellants kill list says the same thing as being worried about the
    appellant killing him.

[18]

The
    appellant argues that the trial judge erred in admitting this testimony. He
    challenges the sufficiency of the indicia of reliability of the statements to
    meet the threshold reliability required by the principled exception. He also
    urges that this evidence should not have been admitted because its probative
    value is outweighed by its prejudicial effect.

[19]

The
    appellant does not take issue with the jury directions relating to the proper
    use of the evidence. The appellant did argue, however, that the trial judge
    erred by not giving a sharp warning about credibility problems with Starrs
    testimony.

[20]

We
    would not give effect to these grounds of appeal.

(i)

The Threshold Reliability Challenge

[21]

Although
    the trial judge admitted the evidence under the principled exception to the
    hearsay rule, both the proposed evidence and the hearsay statements that were
    ultimately presented would satisfy the state of mind exception relied upon by
    the Crown. This is enough, in the circumstances, to demonstrate that the
    threshold indicia of reliability requirements of the principled exception
    were met. We will explain.

[22]

In
Starr,
at para. 168, Iacobucci J., for the majority, quoted
R. v.
    Smith,
[1992] 2 S.C.R. 915 at p. 925 stating that an exception to the
    hearsay rule arises when the declarants statement is adduced in order to
    demonstrate the intentions, or state of mind, of the declarant at the time when
    the statement was made. He endorsed the conditions for this exception
    expressed in J.H. Wigmore,
Evidence in trials at common law,
revised
    ed. by J.H. Chadbourn (Boston: Little Brown, 1976) vol. 6 at para. 1725, p. 129,
    that the statement must be of a
present existing state of mind,
and
    must appear to have been made in a natural manner and not under circumstances
    of suspicion (emphasis in original). Naturally, the present state of mind of
    the declarant must also be relevant to the proceedings:
R. v. C.(M.),
2014 ONCA 611, 314 C.C.C. (3d) 336, at para. 63.

[23]

Each
    of these requirements is met in this case.

[24]

The
    statements attributed to McQuhae purport to narrate his present state of mind 
    fear that he would be killed by the appellant, or fear because he was at the
    top of the appellants kill list.

[25]

The
    trial judge found that the proposed statements appeared to have been made
    without leading questions or improper influence, or in contemplation of any legal
    proceedings. In other words, the statements were made in a natural manner.

[26]

In
Starr
, at para. 178,

the
ante
    mortem
statement of the deceased that he intended to go to meet the
    accused was made in circumstances of suspicion, namely, the prospect that the
    deceased lied to his girlfriend about his present intention to cover up his
    actual intention to see another woman. No such circumstances of suspicion
    attend McQuhaes statements concerning his state of mind of fear.

[27]

And,
    as in
R. v. Griffin
, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 63, the
    deceaseds fear of the appellant was relevant in that it showed that the
    relationship between the men was acrimonious or strained, which in turn is
    capable, along with other evidence, of supporting an inference that the
    appellant had an animus or intention to act against the deceased. Although the
    distinction is not without its subtlety, it was determined authoritatively in
Griffin
,
    at paras. 58-64,

that this line of reasoning does not offend the
    prohibition in
Starr
against treating a declarants hearsay statement
    about his own state of mind as proof of another persons state of mind.

[28]

Since
    Starrs testimony about McQuhaes statements satisfies the state of mind
    exception, it is sufficient to meet the threshold indicia of reliability
    criterion of the principled exception. This is clear because in
Starr
,
    at para. 168, Iacobucci J. adopted the foregoing requirements to the state of
    mind exception precisely because they satisfy the demands of reliability under
    the principled approach. Although the trial judge could properly have acceded
    to the Crowns request to use the fixed state of mind hearsay exception, his
    holding that the circumstances satisfied the threshold reliability requirement
    of the principled exception was not wrong. He took an alternative, and
    available, route to the same outcome.

[29]

The
    appellant argued that, in the circumstances of this case, there were important
    indicia of unreliability that should nonetheless have prevented Starr from
    offering McQuhaes statements. He focused specifically on Starrs unreliability
    as a witness. The appellant urged that the evidence showed Starr to be biased
    against the appellant, and that he may have fabricated his testimony to prevent
    the appellant from relying on self-defence.

[30]

This
    argument is misdirected. The credibility and reliability of a hearsay witness
    such as Starr is not relevant to the threshold reliability inquiry because the
    threshold reliability inquiry is meant to serve as a substitute for cross-examination
    of the declarant, and because the hearsay witness is fully available to be
    cross-examined at trial
: R. v. Blackman
, 2008 SCC 37, [2008] 2 S.C.R.
    298, at paras. 47-52;
R. v. Humaid

(2006), 81 O.R. (3d) 456
    (C.A.), at paras. 50-51,
leave to appeal to
    S.C.C. refused
,
[2006] S.C.C.A. No. 232. The jury in this
    case was in a position to test fully the truthfulness and accuracy of Starrs
    claim that the hearsay statements were made and what was said. The threshold
    reliability inquiry focuses on the reliability of the hearsay statements
    themselves based on the circumstances in which the statements were made. As
    indicated, in this case the indicia of reliability were sufficient.

(ii)

Probative Value versus Prejudicial Effect

[31]

Even
    when hearsay evidence is technically admissible there is a discretion to
    exclude it where its potential probative value is exceeded by its potential
    prejudicial effect:
Blackman
, at para. 51
; R. v. Candir
, 2009
    ONCA 915, 250 C.C.C. (3d) 139, at para. 59,
leave
    to appeal to S.C.C. refused
, [2012] S.C.C.A. No. 8. In
Humaid,
at para. 57,

Doherty J.A. recognized that, in rare cases, the evidence
    of a hearsay witness can be incredible or unreliable enough to deprive the evidence
    of its probative value and necessitate discretionary exclusion.

[32]

The
    appellant asked the trial judge to exercise his discretion and exclude the
    hearsay evidence in this case. He pointed to the problems with Starrs
    credibility and reliability. He also argued that the hearsay evidence lacked
    probative value because the evidence, taken as a whole, showed that the
    appellants kill list was not serious. Further, in the circumstances, the jury
    would be prone to inflate its importance. He said that if the hearsay
    statements were to be admitted, he would have no choice but to show that he
    made threats of death lightly without any intention to carry them out, evidence
    that would cast him in a poor light before the jury. The trial judge declined
    to exercise his exclusionary discretion. The appellant argues that he erred in doing
    so.

[33]

We
    would not interfere. It is for trial judges to determine whether to exercise
    the exclusionary discretion. Appellate deference is owed to those decisions:
R.
    v. Moo,
2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 101;
R. v. S.(S.)
,
    2008 ONCA 140, 232 C.C.C. (3d) 158, at paras. 29-31. The appellant has been
    unable to identify any legal errors or errors in principle in the way that
    discretionary decision was made, or show any material misapprehension of the
    evidence. Nor was the trial judges balancing of factors unreasonable.

(iii)

The Jury Direction

[34]

Although
    not pressed during oral argument, the appellant contended in his written
    argument that the trial judge erred in not giving a sharp warning to the jury
    about Starrs evidence. We disagree. The trial judge gave extensive guidance to
    the jury on how to assess testimony, and fairly identified the problems with
    Starrs evidence when summarizing it. It was for the trial judge to decide
    whether more was required, and he was not asked by the appellant to give a
    sharp warning about Starrs evidence.

Issue 2:  Did the trial judge err in law in
    admitting evidence of McQuhaes peaceful disposition?

[35]

The
    Crown sought to lead the following evidence: (1) evidence of Starr that McQuhae
    was generally slow to anger; (2) evidence of John Eaton, McQuhaes neighbour,
    that McQuhae was not of an aggressive nature; and (3) evidence of Mike Cote,
    the appellants brother, that McQuhae was a nice guy and that he had never
    seen McQuhae upset or lose his temper.

[36]

The
    Crown argued that where an accused raised the issue of self-defence, and
    specifically alleged that McQuhae was the initial physical aggressor, evidence
    of McQuhaes peaceful disposition was relevant and probative towards
    potentially refuting the appellants claim and properly admissible.

[37]

The
    appellant submitted that evidence of McQuhaes peaceful disposition lacked
    relevance and probative value because, in raising the defence of self-defence,
    the appellant was not asserting that McQuhae had a violent disposition. Even if
    the character of the deceased was put in issue, evidence that a person is
    typically peaceful does not prove how such a person would react in extreme
    circumstances. Finally, trial counsel for the appellant argued that the
    appellant could be prejudiced by this evidence because it could be juxtaposed
    against evidence that the appellant had quick temper.

[38]

The
    trial judge admitted only the second part of Cotes evidence, that he had never
    seen McQuhae lose his temper, because it was evidence of McQuhaes peaceful
    disposition. For the same reason, the trial judge admitted the evidence of
    Starr to the effect that McQuhae was generally slow to anger, and the evidence
    of Eaton to the effect that McQuhae was not of an aggressive nature.

[39]

We
    do not agree that the trial judge erred in admitting the evidence. The evidence
    admitted was relevant because the appellant had raised and was relying on self-defence.
    This court has held that evidence of a deceaseds peaceful disposition is
    relevant to the issue of self-defence, because the jury has to determine if McQuhae
    acted in a way that caused the accused to fear that his life was in danger or
    that he would suffer grievous bodily harm:
R. v. Krasniqi,
2012 ONCA 561, 291 C.C.C. (3d) 236
, at para. 63. Such
    evidence is therefore admissible where its probative value outweighs its
    prejudicial effect:
R. v. Krasniqi,
at para. 63. The appellant has not
    persuaded us that, in this case, the prejudice caused by the character evidence
    required its exclusion.

[40]

The
    appellant also argues that the trial judge erred by not instructing the jury
    about the use of this evidence, a non-direction amounting to a misdirection. He
    claims that this error was made worse because the trial judge re-iterated the
    evidence of peaceable disposition in a prejudicial way. This court has stated
    that non-direction only becomes misdirection, when something left unsaid makes
    wrong something that was said, or where what was left unsaid is essential to an
    accurate instruction on the subject:
R. v. Bradey,
2015 ONCA 738, 127
    O.R. (3d) 721, at para. 131. A specific instruction regarding this evidence was
    not essential because the trial judge instructed the jury regarding the
    assessment of witness testimony, he reviewed the evidence including that of
    several witnesses to the effect that the appellant typically was not physically
    aggressive, and he repeatedly instructed the jury to consider all the evidence.
    Further, the appellant did not request that the trial judge provide a charge to
    the jury as he now submits. This could have been a strategic decision not to
    call attention to this evidence. The fact that counsel had a full opportunity
    to raise this issue with the trial judge but remained silent is a factor in
    assessing the adequacy of the instruction on appeal
: R. v. Minor
,

2013
    ONCA 557, 303 C.C.C. (3d) 382, at para. 89;
R. v. Royz
, 2009 SCC 13,
    [2009] 1 S.C.R. 423, at para. 3.

Issue 3: Did the trial judge err in law in
    admitting into evidence photographs depicting possible anatomical positions of the
    deceased at the time of the stabbing?

[41]

The
    trial judge admitted photographs depicting possible anatomical positions of the
    deceased at the time of the stabbing. He concluded that photographs of the
    deceaseds bloodstained shirt worn by a model demonstrating the possible
    anatomical positions of the deceased was necessary in order to explain the
    bloodstain pattern analysts conclusion that the only anatomical positions that
    accounted for the bloodstains on the deceaseds pants and shirt were either a
    prone position leaning over at the waist, or a prone position with hands and
    knees on the ground. The trial judge concluded that the photographs helped
    explain the expert opinions, would assist the jury in following the evidence,
    and were probative with respect to the issues of intention and self-defence.

[42]

The
    appellant submits that the trial judge erred because the photographs depicted
    anatomical positions that were merely possible, rather than probable. It was
    improper to admit photographs depicting how McQuhae may have been positioned
    without any testing of the accuracy of that depiction.

[43]

We
    do not agree that the evidence was speculative. The analyst testified during
    his examination-in-chief as follows:

So what position would the decedent have to be in in order to
    only get [blood] stains on the sleeves and on the inner part of the  the shirt
    and not basically anywhere else in the scene other than that pooling position?



I did some experimentation using a model that was the same
    height as our decedent and went through basic scenarios. So in order to expose
    both sleeves and the inner portion of both the left and right panels of the
    shirt,
the only way that would make sense
is if the shirt and wearer
    are in some sort of prone position; bent over.



[T]he theory was that the person
    was in this or a similar position for a period of time while bleeding. Its the
only
position that accounts for the staining were seeing at the scene
    and the staining were seeing on both the  the pants and shirt of the decedent
    [Emphasis added.]

[44]

The
    photographs were demonstrative evidence, helpful in understanding and evaluating
    this testimony. They illustrated the analysts observations and conclusions as
    to the position of the deceased when he was stabbed in a more effective way
    than a simple verbal description would have done.

[45]

The
    trial judges instructions to the jury appropriately guarded against
    prejudicial effect, to the extent there was any. He advised the jury that the
    photographs and reports filed as exhibits were only as good as the evidence on
    which they were based, and that in deciding how much or little to rely on them,
    the jury should consider not only how they were prepared, but also the evidence
    on which they were based. The trial judge did not err either in admitting the
    photographs, or in his instructions to the jury on how the photographs should
    be used.

Issue 4: Did the trial judge err in law in failing
    to properly charge the jury on the elements of self-defence?

[46]

The
    appellant submits that, even though both the Crown and defence requested a
    charge on both s. 34(1) and 34(2), the trial judge erred in charging on s.
    34(1). He submits that, because the appellant admitted to intentionally
    stabbing McQuhae as a proportionate response to a deadly situation, a
prima
    facie
case had been made out that the appellant likely intended to cause
    significant bodily harm. That should have disqualified s. 34(1).

[47]

He
    further submits that the s. 34(1) charge was wrong. He argues the jury should
    have been instructed that the appellant could have used force to repel McQuhaes
    attack if he did not intend to cause death or grievous bodily harm, so long as
    he used no more force than was necessary based upon the appellants
honest
    and reasonable
perception of the attack. The jury should have been told
    that s. 34(1) applies even if great bodily harm was inflicted and that the
    force used need not be measured to a nicety. These principles were either not
    explained or were not explained with sufficient detail. As a result, the trial
    judge failed to properly emphasize the
honesty

of the
    appellants belief and the
reasonableness

of that belief.
    Instead, the trial judge simply referred to a reasonable belief, rather than an
    honest belief reasonably held. In other words, the trial judge failed to tell
    the jury that the appellant could be mistaken.

[48]

The
    appellant also alleges that the charge on s. 34(2) was in error because the
    trial judge did not properly identify the actions of McQuhae that attracted s.
    34(2). More specifically, the trial judge should have drawn a sharp distinction
    between the initial argument and fight, and McQuhaes introduction of the
    knife. As a result, the jury was left with the impression that the original
    fight was a basis for measuring the force used by the appellant.

[49]

As
    with s. 34(1), the appellant submits that trial judge over-emphasized the
    objective elements of the defence under s. 34(2). The trial judge referred to
    reasonable belief rather than instructing the jury to ask whether the appellant
    honestly believed, even if he was mistaken, that he was being assaulted, and
    that his belief was reasonable in the circumstances.

[50]

We
    do not agree.

[51]

The
    trial judge did not err in charging the jury on s. 34(1). That part of the
    charge was expressly requested by appellant during the pre-charge conference.
    In addition, a charge on s. 34(1) was logical because the appellant testified
    that the first stab wound was not inflicted intentionally. Moreover, the
    appellants counsels closing address to the jury left it open to the jury to
    consider s. 34(1). Therefore, the instruction on s. 34(1) was correct.

[52]

The
    trial judge correctly charged the jury on both the subjective and objective
    elements of s. 34(1). In particular, the trial judge explicitly referred to the
    appellants belief and the fact that self-defence could be made out even if the
    appellant was honestly mistaken about the facts. When viewed as a whole, the
    charge also made clear that self-defence was available even when great bodily
    harm was caused so long as it was unintended. This aspect of the charge
    properly stressed the appellants intention rather than the consequences of his
    actions.

[53]

The
    trial judge correctly instructed the jury on s. 34(2) and properly explained both
    the subjective and objective components of the defence. The trial judges
    instructions clearly conveyed that the appellants belief that he was being
    assaulted could be mistaken, so long as it was honestly and reasonably held.
    Similarly, the instructions clearly conveyed that the appellant could be
    mistaken regarding whether he was in danger, so long as he honestly and
    reasonably believed that he was. The same is true of the trial judges
    instructions regarding whether the appellant honestly and reasonably believed
    that he had to use force to save himself.

[54]

We
    therefore would not give effect to these grounds of appeal.

Issue 5: Did the trial judge err in law in failing
    to properly charge the jury on the issue of provocation?

[55]

The
    appellant submits that the trial judge failed to relate the evidence that was
    capable of constituting provocation to the legal requirements of the defence.
    The appellant testified to an initial fight and then the introduction of a
    knife by McQuhae. However, the trial judge did not distinguish between the
    initial fight and the introduction of the knife. The introduction of the knife
    fundamentally altered the nature of the conflict by significantly escalating
    the danger faced by the appellant.

[56]

We
    do not agree.

[57]

The
    trial judges charge on provocation was requested by the appellant and modelled
    after the standard charge on provocation. The trial judges references to
    insult and McQuhaes initial attack on the appellant using fists followed the
    appellants own submissions at trial: that McQuhaes initial attack using fists
    was part of the wrongful act or insult.

[58]

In
    any event, the trial judge clearly communicated to the jury that there had to
    be either a wrongful act or an insult. Moreover, given the appellants
    testimony and closing address characterizing the altercation as a continuous
    event, the trial judge properly included the initial fight as part of the
    context leading up to the introduction of the knife.

Issue 6: Did the trial judge err in law in failing
    to charge the jury on the exculpatory value of evidence led by the Crown?

[59]

The
    Crown introduced the appellants statements made to police in Barrie when he
    admitted to killing McQuhae, but asserted self-defence. The appellant submits
    that, the trial judge did not explain to the jury that his statements to the
    police were exculpatory.

[60]

We
    do not agree. The trial judge clearly instructed the jury that
all
the
    appellants statements in evidence before them may be used for or against the
    appellant. Indeed, the trial judge specifically instructed the jury that they
    must consider remarks that may help the appellant. Further, the appellant did
    not object to this aspect of the charge at the time of trial: see
R. v.
    Polimac
, 2010 ONCA 346, 254 C.C.C. (3d) 359, at paras. 85-87.

Issue 7: Did the trial judge err in law in the
W.(D.)
instruction by isolating the appellants evidence and character evidence?

[61]

Mr.
    Cote testified in his defence. He also offered additional defence evidence
    through other witnesses. Yet when the trial judge charged the jury on the
W.(D.)

test the trial judge described the analysis the jury should give to Mr.
    Cotes evidence. The appellant submits that this charge was in error because
    the
W.(D.)

analysis should be applied to all of the defence
    evidence, and not simply Mr. Cotes testimony.

[62]

Again,
    we disagree that the trial judge erred. He did not isolate Mr. Cotes
    testimony. He spoke of Mr. Cotes evidence, an expression capable of
    including all of the evidence Mr. Cote called. In this case, the trial judges
    use of the word evidence would not have been misunderstood by the jury as
    being confined to the appellants testimony. Read as a whole, the charge instructs
    the jury, at many points, to consider all of the evidence, and clearly directs
    the jury to consider all evidence which assists the appellant. The jury could
    not have been under any misunderstanding about its duty to consider all of the
    evidence in determining whether it raised a reasonable doubt about the
    appellants guilt
: R. v. Fogah
, 2018 ONCA 564, 362 C.C.C. (3d) 4, at
    para. 73.

Issue 8: Did the trial judge err in increasing the
    period of parole ineligibility?

[63]

The
    appellant submits that the trial judge erred by considering the appellants
    rejected s. 34 defence to be an aggravating factor, characterizing it as an
    attempt to shift responsibility to McQuhae.

[64]

We
    agree with the appellant that the trial judge erred in finding that that the
    appellants attempt to lay blame on the deceased constituted an aggravating
    factor.  This was the essence of his assertion of self-defence. That said, we
    do not agree that the error had an impact on the sentence imposed, or that the
    sentence is unfit.

[65]

The
    period of 12 years is not demonstrably unfit. Nor does it constitute an
    unreasonable departure from the principle that a sentence must be
    proportionate to the gravity of the offence and the degree of responsibility
    of the offender:
R. v. Lacasse,
2015 SCC 64, [2015] 3 S.C.R. 1089
DISPOSITION
[66]

The appeal as to conviction is dismissed. Leave to appeal the sentence
    is granted but the appeal as to sentence is dismissed.
Released:
    DP OCT 31 2018
M.L. Benotto J.A.
L.B. Roberts J.A.
David M. Paciocco J.A.