



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hope, 2016 ONCA 623

DATE: 20160812

DOCKET: C57835

Watt, Epstein and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Hope

Appellant

Melanie Webb, for the appellant

Lucy Cecchetto, for the respondent

Heard: March 21, 2016

On appeal from the convictions entered on March 8, 2013
    and the sentence imposed on October 4, 2013 by Justice C.A. Tucker of the Superior
    Court of Justice, sitting with a jury.

Epstein J.A.:

[1]

On October 4, 2009, the appellant attended the
    birthday party of a three-year-old girl. The appellant carried a loaded concealed
    handgun  for protection. Tyrone Johnston, another guest at the party,
    confronted the appellant in the garage of the home where the celebration was
    taking place. The men indicated to each other that each was carrying a gun.
    Johnston left the party briefly and upon his return threatened to kill the
    appellant (the garage incident).

[2]

Another guest at the party, D
o
r
i
v
a
ldo

D
e
c
a
stro, intervened and took Johnston out
    onto the street.

[3]

After a short interval, the appellant followed
    Johnston to the street. He testified that he left the garage and went out to
    the street in order to calm things down with Johnston. However, the clash
    between the two men continued. Johnston screamed at the appellant that he would
    kill him and his sister. According to the appellant, Johnston moved his hand
    toward his waist  an action that the appellant interpreted as Johnstons
    reaching for his gun  and charged at him. The appellant pulled out his gun,
    closed his eyes and fired six shots. Three hit Johnston in the back (the
    street incident).

[4]

Johnston ran to a nearby home and collapsed. He was
    pronounced dead at the scene.

[5]

The appellant was charged with first degree murder,
    using a firearm while committing an indictable offence, and possessing a
    prohibited weapon without a lawful excuse. He pleaded guilty to the latter
    charge.

[6]

At trial, the Crowns theory was that when the
    appellant was in the garage he made up his mind to kill Johnston. The appellant
    went out to the street and followed through with this plan by shooting Johnston
    in the back.

[7]

The appellant admitted that he killed Johnston. His
    primary defence was that he shot Johnston in self-defence.

[8]

The jury convicted the appellant of second degree
    murder and of using a firearm while committing an indictable offence.

[9]

The appellant appeals those two convictions and the length
    of his sentence. He argues that the trial judge made a number of mistakes,
    primarily in his instructions to the jury on the issue of self-defence. He also
    says that the sentence is excessive.

[10]

For the reasons that follow, I
    would allow the appeal from the convictions under appeal, set them aside and
    order a new trial. In the circumstances, I do not reach the sentence appeal.

THE BACKGROUND FACTS

[11]

It is useful to review various
    aspects of the evidence to give context to the issue on which this appeal turns
     the adequacy of the jury instructions concerning self-defence. Much of this
    evidence came through the testimony of the appellant.

The Previous Dealings between
    the Appellant and Johnston

[12]

The
birthday party took place in a residential complex. The
app
e
l
l
a
n
t
s

si
s
te
r
,

S
ie
r
ra

Montu
r
e,

o
cc
upied

Unit

14

of

t
h
e

c
omp
l
e
x with

h
e
r

b
o
y
f
ri
e
nd,

D
e
c
a
stro. Out of

c
on
c
e
rn
a
bout
what he perceived to be
his si
s
te
r
s uns
a
f
e l
i
f
e
s
t
y
le
    with Decastro
, the app
e
l
l
a
nt

p
u
r
c
h
a
s
e
d

a
n

i
l
leg
a
l

g
un

several
    mon
t
hs

b
e
fo
r
e

the
p
a
r
t
y.

[13]

J
ohnston

l
i
v
e
d

in

Unit

12 of the complex.

The

app
e
l
l
a
nt

h
a
d

p
r
e
vious
l
y

met

J
ohnston

t
hrou
g
h Cor
re
ll

S
la
w
te
r
.
    Slawter told the appellant that Johnston was a gang member. If anyone wanted to
    mess with Johnston, they had better have a gun. The

app
e
l
l
a
nt

wo
r
ri
e
d

a
b
o
ut

his si
s
ters

l
i
ving

two

doors
d
own

f
r
om

Johnston

e
sp
e
c
i
a
l
l
y sin
c
e

D
e
ca
stro

h
a
d

s
a
i
d

that

J
ohnston
    w
a
s known to play
a
rou
n
d
    with

g
uns.

[14]

The appellant and Johnston had a
    couple of minor disputes prior to the day of the party.

The Party

[15]

The appellant learned about the
    birthday party that Ike Ume, who lived in Unit 19, was hosting for his young
    daughter. The appellant knew that the guests would include Decastro and
    Johnston. The appellant decided to attend the party because his sister and Decastro
    would be going and he wanted to maintain good relations. Given the type of
    people who would be at the party, the appellant decided to take his gun with
    him.

[16]

The men who attended the event
    congregated in the garage of the home where the party was taking place. The appellant
    observed Johnston yelling at another guest, Shilton Barros. Barros told people
    that Johnston had threatened to shoot him in the head. Eventually Barros was
    forced to leave the party.

The Two Assaults

1.

The Garage Incident

[17]

The appellant testified that after
    Barros left, Johnston confronted him and challenged him by asking, You good?
    The appellant said yes, and Johnston replied, Well, Im always good. The
    appellant explained that through this exchange each man made it clear he was
    carrying a gun. In fact, Johnstons response meant that he always had a gun
    with him.

[18]

According to the appellant Johnstons
    aggression against him continued to escalate. Johnston told the appellant he
    was going to kill him. He made gun signs with his hand. The appellant asked
    Johnston what his problem was and told Johnston that he did not have a problem
    with him. The appellant, referring to an earlier dispute, indicated to Johnston
    that [w]e squashed that beef. Johnston replied that he did not care, and said
    Ill kill you, and It is what it is.

[19]

At one point, Johnston moved
    towards the appellant. Other men had to intervene to pull him away. The
    appellant testified that he was frightened and believed that Johnston intended
    to cause him serious harm.

[20]

Decastro took Johnston to the
    street. Several minutes later, the appellant left the party and joined the two
    men.

2.

The Street Incident

[21]

The appellant testified that he
    decided to go out onto the street and try to diffuse the situation with
    Johnston in order to protect his sister from the consequences of future
    problems with Johnston. The appellant felt that leaving the garage, either
    through the front door or by entering Unit 19 and locking the door, and then calling
    the police might solve the immediate issue but would make things worse in the
    long-run since Johnston and his associates would likely retaliate against him
    and his sister. The appellant felt that waiting in the garage was not a
    solution, because Johnston would still be waiting for the appellant, whenever
    he left.

[22]

As a precaution, before leaving
    the garage the appellant cocked his gun and placed it back in his waistband.

[23]

When the appellant came outside,
    Johnston was standing with Decastro in the roadway of the complex in the area
    of Unit 13. The appellant walked toward the two men. Johnston screamed things
    such as Ill kill you and your sister. The appellant responded with Whats
    your problem? The appellant again attempted to assure Johnston that he had no
    problem with him.

[24]

The appellant and Johnston stood
    face to face. Johnston suddenly put his hand toward his waistband and charged
    the appellant. The appellant testified that he believed Johnston was taking out
    his gun. Fearing for his life, the appellant shoved Johnston, went for his gun,
    closed his eyes and pulled the trigger. He closed his eyes again, took a couple
    steps forward and shot again.

[25]

The appellant denied pointing his
    gun at Johnston. He said I didnt aim it at him. [It was] the fear of the
    moment. The appellant explained Johnstons having been shot in the back as
    being the result of the shove. The appellant denied chasing Johnston before
    firing the first shot.

[26]

According to the appellant, after
    the sixth shot he opened his eyes and saw Johnston running towards Unit 12. The
    appellant turned and fled. In shock, he discarded the gun, went into a bush in
    a nearby field and cried. He later found out that Johnston had died.

[27]

Decastros testimony from the
    preliminary inquiry was read in at trial. He could not remember everything that
    the appellant and Johnston had said on the road, but recalled that the
    appellant had said We already squashed the beef we had before. Johnston had
    responded So what. Johnston then aggressively moved towards the appellant
    with his hands in his pockets. Decastro heard gunshots and ran.

[28]

Chris Herriott lived in the
    complex close to Umes unit. He was working in his garage and heard the man
    living in Unit 12 (Johnston) cursing and swearing at someone at the party.
    The man from Unit 14 (Decastro) was trying to lead him away. Sometime later, he
    heard the same man from Unit 12 challenging someone from the party to [c]ome
    out and fight like a man. Decastro came back over and the two men went into
    Unit 14.

[29]

Herriott testified that he then
    heard Johnston yelling and screaming at someone from the party, for a third
    time. He knew things were getting bad, then heard a gunshot. He looked out
    his garage window and saw a person running in front of Unit 10 with a gun in
    his hand and saw the muzzle flash. The man was heading in the direction of Unit
    12. Herriott immediately called the police.

[30]

Police and expert evidence given
    at trial established that six shots had been fired, three of which had struck
    Johnston in his back. It was possible that Johnston could have been running,
    turning away, taking something out of his pocket or raising his arm when he was
    shot. Bullet holes and ejected casings were found in the vicinity and in the
    entrance area of Unit 12. No gun, other than the appellants, was discovered at
    the scene. A butterfly knife was found in Johnstons pocket.

The Parties
    Positions at Trial

[31]

At its core, the Crowns position
    at trial was that the appellant was guilty of first degree murder. Following
    the garage incident, the appellant decided to put an end to his dispute with
    Johnston by following Johnston into the street and putting an end to Johnston
    himself. With this specific intent in mind, the appellant cocked his loaded gun,
    put it in his waistband and went out to the street. There, he confronted
    Johnston, pulled out his gun and, as Johnston turned and fled, the appellant
    shot Johnston in the back.

[32]

The Crown argued that the
    appellants evidence that he went for his gun when Johnston went for his, was
    not to be believed. Johnston had no gun on him. He was found to be armed only
    with a butterfly knife.

[33]

The appellants primary position was
    that he had shot Johnston in self-defence.

[34]

In the garage Johnston had
    threatened to kill the appellant. The appellant was unsuccessful in his
    attempts to diffuse the situation between him and Johnston and so Decastro took
    Johnston out of the garage and onto the street. The appellant conceded that
    while he was in the garage he had a number of available options to escape
    Johnstons aggression. However, he rejected them as he had reason to continue
    to try to de-escalate the dispute with Johnston  mainly to protect his sister.
    To this end he went out to the street.

[35]

Once the two men were facing each
    other in the street, Johnston approached the appellant and threatened him. Johnston
    then charged at the appellant and moved in a manner that caused the appellant
    to believe Johnston was pulling out his gun. It was in response to those
    actions that the appellant drew his gun from his waistband, closed his eyes and
    fired.

THE ISSUES ON APPEAL

[36]

On the conviction appeal the
    appellant alleges a number of errors including various deficiencies in the
    trial judges final instructions to the jury. I would summarize the alleged
    errors as concerning:

i.

whether the trial judge erred in
    instructing the jury on self-defence;

ii.

whether the trial judge erred in
    leaving inadmissible opinion evidence with the jury;

iii.

whether the trial judge erred in
    instructing the jury on the intent required for murder; and,

iv.

whether the trial judge erred by
    failing to leave the defence of provocation with the jury.

ISSUE ONE: Did the Trial
    Judge Err in Instructing the Jury on Self-defence?

[37]

The appellant put forward three
    arguments concerning self-defence:

1.
The jury
    instructions failed to assist the jury as to the relevance of the garage
    incident, particularly in relation to the issue of retreat and in light of the
    Crowns closing address.

2.
The trial
    judge reversed the burden of proof.

3.
The trial judge
    failed to provide a
Baxter
[1]
instruction.

[38]

As to the availability of the
    proviso, the appellant argues that self-defence was the key defence at trial. The
    appellant gave evidence which, if believed, was capable of establishing that he
    acted in self-defence when he shot Johnston. It therefore cannot be assumed
    that the jury would have decided the same way had the jury received proper instructions
    relating to the defence of self-defence.

Analysis

1.

Did the Jury Instructions Fail
    to Sufficiently Assist the Jury as to the Relevance of the Garage Incident,
    Particularly in Relation to the Issue of Retreat?

(a)
Background

[39]

Recall that aside from some
    preliminary jostling, there were two main altercations between the appellant
    and Johnston.

[40]

The first  the garage incident  took
    place in the following circumstances. The appellant knew Johnston to be a gang
    member and a hot-head. Johnstons aggression had forced Barros to leave the
    party. Johnston approached the appellant, indicated he had a gun and threatened
    to kill him. Decastro was forced to diffuse the situation by getting Johnston
    out of the garage.

[41]

The second  the street incident 
    took place a short time later. According to the appellant, Johnston threatened
    to kill him and his sister, and then charged him as he put his hand to his
    waist  an action that the appellant interpreted as Johnstons going for his
    gun.

i.

The Crowns Submissions

[42]

In his closing address to the
    jury, Crown counsel referred to the interval between the garage incident and
    the street incident as the sequence of events. The Crown reiterated a number
    of times that it was important for the jury, when assessing self-defence, to
    consider the entirety of the sequence of events:

I expect Your Honour
    will tell you that you must consider these three elements that Ive just gone
    through for self-defence and you must consider those three elements throughout
    the entire sequence of events. You dont consider the three elements just at
    the end of the sequence of events, much as you dont consider the three
    elements just at the start of the sequence of events. You have to consider the
    three elements throughout the sequence of events. And why is that important?
    Its important, I respectfully submit to you, because you always have to bear
    in mind that self-defence is a defence of last resort.
So that if you, the
    jury, determine when considering the entire sequence of events, that reasonably
    an alternative other than shooting [Johnston] existed for [the appellant], then
    [the appellant] cant rely on self-defence
. [Emphasis added.]

[43]

Later in his address, Crown
    counsel reminded the jury of suggestions he had put to the appellant in
    cross-examination as to options available to him while he was still in the
    garage:

I suggested other
    alternatives that I said were available to him
while he remained in the
    garage
. I suggested he could have used his cell phone to call the police. I
    suggested he could have stayed in the garage. I suggested he could have had [Ume]
    close the garage door. I suggested that he could have gone into Unit 19 and
    called the police. He could have gone into Unit 19 and out the back door. And I
    suggested that he could have gone out of the garage, the big garage door,
    turned right, and left the complex.

You have to ask
    yourself,
when in the garage
did the appellant have another reasonable
    alternative.
When in the garage
, was there a reasonable alternative
    other than the one chosen by [the appellant]? [Emphasis added.]

[44]

Crown counsel then made reference
    to options potentially available to the appellant after he had left the garage
    but prior to Johnstons coming at him:

[Decastro] testified
    that he turned to [the appellant] and said: Yo Rob, just go away. Go away.
    Im going to pause for a moment and ask you  remember, you are to consider the
    whole sequence of events. And ask yourself, reasonably, did [the appellant]
    have another alternative at that point in the sequence. Could he have, acting
    reasonably, turned and left? Could he have acted reasonably, gone over to Unit
    14, gone inside and locked the door?

[45]

Crown counsel made the following
    point as to alternatives potentially available to the appellant during the
    street incident:

If you find as a fact
    that [the appellant] pulled out his gun and [Johnston] turned and fled into
    Unit 12, you have to ask yourself, did [the appellant] have a reasonable
    alternative other than shooting [Johnston]? If [Johnston] turned and fled into
    Unit 12, would it be reasonable to turn around, go into Unit 14 and lock the
    door? Thats for you to consider. Would it be reasonable if [Johnston] turned
    and fled into Unit 12, to simply turn around and leave the complex? Thats for you
    to consider.

[46]

At the conclusion of the Crowns
    submissions, defence counsel strongly objected to the Crowns closing address relating
    to the relevance of the garage incident and the appellants opportunity to
    retreat after Johnston assaulted him in the garage. In her lengthy submissions
    defence counsel argued that in the portions of the Crowns argument noted
    above, Crown counsel effectively told the jury that the appellant could not
    avail himself of the defence of self-defence if, after the garage incident
    occurred, the jury found that the appellant had other alternatives available to
    him.

[47]

The trial judge did not accept the
    defence submissions. She interpreted the Crowns closing as properly telling
    the jury to look at the circumstances of that day in assessing whether the
    appellants conduct was reasonable. She refused to provide a correcting
    instruction.

ii.

The Trial Judges Instructions

[48]

The trial judge did not
    specifically tell the jury that the appellant was not required to retreat
    earlier in the sequence of events; namely, after the garage incident. She did,
    however, make several statements that suggested the point in time at which the
    appellant acted in self-defence was during the street incident. In referring to
    the first prong of self-defence, the trial judge stated:

[The appellant]
    testified that [Johnston], in addition to the threats, moved forward towards
    him and then made a motion with his left hand while pulling a gun. [Decastro]
    again, in his evidence, stated that [Johnston] had moved towards [the
    appellant]. I would suggest to you that
[Johnstons] actions at that point
    could be considered as an unlawful assault upon [the appellant]
, but it is
    your decision to make based on the facts that you find. [Emphasis added.]

[49]

When referring to the second prong
    of self-defence, she stated:

Did [the appellant]
    reasonably fear that [Johnston] would kill or seriously injure him? The
    question requires you to consider not only [the appellants] state of mind
when
    he used force against [Johnston]
, but also what a reasonable person would
    fear in the same circumstances.

[The appellant]
    testified that [Johnston] not only was threatening his life but that of his
    sister, as he approached him where he stood with [Decastro]. His evidence is
    that [Johnston] moved toward him and with his left hand pulled a gun. He said
    he tried to push [Johnston] away from this action as he pulled his own gun and
    shot him. [Decastro] said in his evidence that [Johnston] had moved towards [the
    appellant]. [The appellant] said he thought he was going to die.
It is at
    this point in time
that you need to determine the reasonableness of [the
    appellants] belief, both subjectively from [the appellants] perspective and
    objectively from the perspective of the reasonable man, based upon your
    assessment of the entire sequence of events between the men and your assessment
    of the evidence as a whole. [Emphasis added.]

[50]

In referring to the third prong of
    self-defence, the trial judge explained:

Did [the appellant] reasonably
    believe that he could not otherwise save himself from being killed or seriously
    injured by [Johnston]? This question requires you to consider not only [the
    appellants] state of mind
when he used force against [Johnston]
, but
    also what a reasonable person would believe in the circumstances.

iii.

The Questions and the Recharge

[51]

During their deliberations, the
    jury submitted a number of questions. One question contained two requests
    pertaining to the issue of self-defence. The first was for the appellants testimony
    from the time Johnston threatened him in the garage until he left the
    residential complex. The second request was worded as follows: In reference to
    the third element of self-defence, no other option to preserve his life, we
    would like to know when these options would start. What is the timeline  prior
    to the assault or after the assault.

[52]

The second question became the
    subject of considerable debate.

[53]

The trial judge expressed
    confusion as to what was meant by the assault. Defence counsel indicated she
    assumed it was the street incident; Crown counsel expressed the view that it
    was the garage incident. The trial judges initial opinion was that it would be
    at the point in time when the assault in the street took place.

[54]

Defence counsel submitted that in
    response to the second request, the trial judge should make it clear to the
    jury that the time to consider was when Johnston moved towards the appellant on
    the street. Crown counsel noted the prosecutions position that an assault
    occurred in the garage. It was the trial judges view that she had told the
    jury that the reasonableness of the appellants belief that there was no other
    option to preserve his life was to be determined at the time of the assault in
    the street. Defence counsel again raised the point that the law did not require
    the appellant to retreat when he was in the garage, and argued that the
    question made it clear that the jury did not understand this.

[55]

The trial judge ultimately determined
    that her initial instructions had accurately directed the jury on the issue of
    retreat and particularly the focus on the street incident. Accordingly, in
    response to the jurys request for assistance on this point, the trial judge reread
    the portion of her charge on the third element of self-defence and the portion
    of the charge concerning the issue of mistaken belief. That recharge included
    the following statements:

Did [the appellant]
    reasonably believe that he could not otherwise save himself from being killed
    or seriously injured by [Johnston]? This question also requires you to consider
    not only [the appellants] state of mind
when he used force against
    [Johnston]
, but also what a reasonable person would believe in the same
    circumstances.

If you are not satisfied
    beyond a reasonable doubt that [the appellant] did not honestly and reasonably
    believe that he could only save himself from death or serious injury by killing
    or seriously injuring [Johnston]
at the time he reasonably believed
    [Johnston] pulled his gun on him
, [the appellant] was not acting in lawful
    self-defence. [Emphasis added.]

[56]

The jury was provided with no particularized
    assistance on the issue of the relevance of the appellants failure to take
    advantage of possible avenues of retreat, prior to the street incident.

(b)
The
    Parties Positions

[57]

The appellant submits that the
    Crowns closing address suggested that the appellant was legally required to
    retreat following the garage incident. Otherwise, he could not rely on
    self-defence. Despite defence counsels request, the trial judge did not
    provide a correcting instruction. Compounding this error was the trial judges
    failure to adequately answer the jurys question as to the relevance of the
    garage incident.

[58]

The respondent does not agree that
    Crown counsels closing address contained such a suggestion. Rather, Crown
    counsel submitted, as he was entitled to, that the appellant decided to kill
    Johnston before leaving the garage, and he invited the jury to review the entire
    sequence of events in determining whether the appellant acted reasonably. Further,
    defence counsel was ultimately content with how the trial judge intended to
    instruct the jury.

(c)
The
    Governing Principles

i.

General Self-defence Provisions

[59]

The self-defence provision
    applicable at the appellants trial was the former s. 34(2) of the
Criminal
    Code
, which stated:

34
    (2) Every one who is unlawfully assaulted and who causes death or grievous
    bodily harm in repelling the assault is justified if

(a) he
    causes it under reasonable apprehension of death or grievous bodily harm from
    the violence with which the assault was originally made or with which the
    assailant pursues his purposes; and

(b) he
    believes, on reasonable grounds, that he cannot otherwise preserve himself from
    death or grievous bodily harm.

[60]

In
R. v. Craig
, 2011 ONCA
    142, 269 C.C.C. (3d) 61, at para. 33,

Doherty J.A. described the three
    elements of the s. 34(2) defence as follows (referencing
R. v. Pétel
,
    [1994] 1 S.C.R. 3):

1.

An unlawful assault, or at least a reasonable belief by the accused that
    he or she was being assaulted;

2.

A reasonable apprehension of risk of death or grievous bodily harm; and

3.

A reasonable belief that it is not possible to preserve ones self from
    harm except by killing the perpetrator of the assault.

[61]

The elements of self-defence have
    both a subjective and an objective component:
Craig
, at para. 36.

ii.

Retreat

[62]

The concept of retreat is relevant
    to the second and third of the three elements of the s. 34(2) defence set out
    above. In
R. v. Cain
, 2011 ONCA 298, 278 C.C.C. (3d) 228, at para. 9,
    this court explained the relevance of the issue of retreat to a self-defence
    claim made under s. 34(2):

Unlike s. 35 of the
Criminal
    Code
, s. 34(2) does not require defendants to retreat in the face of an
    assault, but rather permits defendants to stand their ground during the early
    stages of a confrontation. However, as the appellant properly concedes, the
    possibility of retreat is relevant to the second and third elements of the s.
    34(2) defence, namely, the issues of whether the appellant did have a
    reasonable apprehension of death or grievous bodily harm, and whether the appellant
    had a reasonable belief that it was not otherwise possible to save himself from
    harm except by killing [the deceased]. [Citations omitted.]

[63]

The issue of retreat is also
    relevant when the Crown takes the position that the individual claiming
    self-defence had, from the start of the interaction, intended to harm the
    deceased: see e.g.
Cain
, at paras. 10, 15.

[64]

Where Crown counsel makes
    submissions to the effect that an individual is precluded from raising the
    defence of self-defence because he or she had failed to retreat at the start of
    a confrontation, or where there is a sufficient risk that the jury could have
    understood Crown counsel to be making that submission, a correcting instruction
    from the trial judge is required:
Cain
, at para. 11.

[65]

However, the claim of self-defence
    will be fairly put to the jury where the jury instructions, read as a whole,
    make it clear that the jurys task is to determine whether, at the time the
    accused used force against the victim, the accused reasonably believed he could
    not otherwise preserve himself from death or grievous bodily harm:
R. v.
    Stewart
, 2014 ONCA 70, 306 C.C.C. (3d) 269, at para 48.

iii.

Jury Questions

[66]

As I will explain, I have
    concluded that the trial judges instructions concerning self-defence left the
    jury confused specifically with respect to the issue of retreat. I come to this
    conclusion in large part due to the question the jury asked concerning this
    issue during deliberations. Therefore, a summary of the governing legal
    principles should include those that pertain to the significance of jury
    questions.

[67]

In
R. v. W. (D.)
, [1991] 1
    S.C.R. 742, at pp. 759-60, the Supreme Court explained that When a jury
    submits a question, it gives a clear indication of the problem the jury is
    having with a case. Those questions merit a full, careful and correct response.
    As well, the answer should remind the jury of its instructions given in the
    course of the main charge.

[68]

Similarly, in
Pétel
, at p.
    15, the Supreme Court stated:

The importance of
    adequately answering questions put by the jury should be borne in mind. The
    question will generally relate to an important point in the jurys reasoning,
    so that any error the judge may make in answering it becomes all the more
    damaging. It is often necessary to repeat certain aspects of the main charge in
    order to place the specific question in a more general context. [Citation
    omitted.]

[69]

In
R. v. T. (M.)
, 2012 ONCA
    511, 289 C.C.C. (3d) 115, at paras. 114-116, Watt J.A. summarized the law on
    responses to jury questions as follows:

Jury questions
    indicate that at least some jurors are having a problem with an issue in the
    case. Jury questions merit a full, careful and correct response.

Recharges on issues
    presented by jury questions must be correct and comprehensive no matter how
    exemplary the original charge may have been. As a general rule, the correctness
    of the original charge cannot be summoned in forgiveness of a later error in a
    recharge on the very point on which the jury reports confusion and seeks
    clarification. Further, the more time that has elapsed between the main charge
    and the jury question, the more imperative it is that the recharge contain a
    correct and comprehensive response.

In some instances, for
    example where a written version of the original charge has not been provided to
    jurors and a jury question indicates a failure to recall the substance of the
    original charge, a repetition of the original instructions may be sufficient.
    On the other hand, where the judge has provided jurors with a written version
    of the charge, a juror question about a subject like the standard of proof may
    require something more than oral repetition of the charge already given. [Emphasis
    in original. Citations omitted.]

(d)
Application
    of the Governing Principles

[70]

Recall the theories advanced at trial.
    The theory of the Crown was that the appellant, just after the garage incident,
    formed the intent to kill Johnston. The theory of the defence was that the
    appellant shot Johnston on the street in self-defence.

[71]

The events in the garage were
    potentially relevant to each of these theories.

[72]

What took place in the context of
    the garage incident was relevant to the Crowns theory that the appellant
    intended to kill Johnston when he (the appellant) joined Decastro and Johnston
    in the street. It provided the background against which the appellant formed
    the intent to murder Johnston. That the appellant failed to avail himself of
    available exits and instead confronted Johnston on the street, it could be
    argued, was evidence that the appellant, while in the garage, made up his mind
    to kill Johnston.

[73]

The events in the garage were also
    relevant to the theory of the defence of self-defence. In the circumstances of
    this sequence of events the jury had to consider whether the appellants
    decision to shoot Johnston was his only reasonable option in response to
    Johnstons actions when Johnston confronted him on the street. In answering
    this question, the jury was entitled to consider the surrounding events,
    including what happened in the garage, as it informed the appellants state of
    mind and actions during the street incident. It informed the alternatives
    reasonably available to the appellant at the moment he was on the street facing
    Johnston as Johnston (according to the appellant) moved toward him, threatened
    him and brought his hand to his waistband.

[74]

Unfortunately, the trial judges
    instructions did not adequately equip the jury was not well-equipped to
    understand the relevance of the circumstances surrounding the garage incident and
    to properly apply them to the defence of self-defence.

[75]

First, the Crowns submissions on
    the issue were capable of misleading the jury on this point. I refer to the
    Crowns submissions that if the jury determined, considering the entire
    sequence of events, that reasonably an alternative other than shooting
    [Johnston] existed for [the appellant], then [the appellant] [couldnt] rely on
    self-defence. And, as set out above, Crown counsel suggested a number of
    alternatives available to the appellant prior to Johnstons moving toward him,
    including retreat options open to the appellant while he was in the garage. I
    agree with the objection taken by defence counsel that these submissions could
    have left the jury with the impression that the appellant was precluded from
    raising the defence of self-defence because, immediately after the garage
    incident, he had not taken advantage of opportunities to save himself from
    harm.

[76]

Notwithstanding these erroneous
    submissions, the trial judge did not give the corrective instruction she was
    asked to provide and, in my view, should have provided. See
Cain
, at
    para. 11.

[77]

To make matters worse, the trial
    judge, in her instructions to the jury, did not clearly explain the potential
    ways in which the circumstances involving the garage incident might be relevant
    to their deliberations.

[78]

This lack of clarity was made
    evident by the jurys question set out above. The jury expressed uncertainty about
    how to consider the third branch of self-defence, particularly in relation to the
    period in time at which the appellant had to reasonably believe he could not
    otherwise save himself from death or grievous bodily harm. Although the meaning
    of the assault was never clarified,
[2]
I conclude that the question demonstrates the jurys confusion about the
    relevance of the garage incident  significantly of the appellants decision to
    follow Johnston to the street rather than leave the party or call the police 
    to the issue of whether the appellant reasonably believed that he could not
    otherwise save himself from death or grievous bodily harm when he was assaulted
    in the street.

[79]

As noted above, the trial judges
    response to the jurys question was to repeat the part of her charge on the
    third branch of self-defence, a charge that had left the jury confused the
    first time it was given. Although the recharge twice refers to the street
    incident, the majority of the recharge speaks generally about self-defence
    without reference to any particular point in time. Most importantly, it did not
    clarify the relevance of the garage incident to the jurys analysis of
    self-defence.

[80]

In my opinion, leaving the Crowns
    uncorrected erroneous closing to one side, once the jury expressed its
    confusion as to the significance of the garage incident in assessing
    self-defence, it was incumbent on the trial judge to explain that significance.
    Her reiteration of a portion of her charge failed to do so. The jury was left
    inadequately instructed with respect to this aspect of the case  an aspect
    that was both complex and critical to the defence of self-defence.

2.

Did the Trial Judge Err in
    her Instructions by Reversing the Burden of Proof in Relation to the Third Test
    for Self-Defence?

(a)
The Jury
    Instructions

[81]

In her charge to the jury on
    self-defence, the trial judge began by stating Crown counsel must satisfy you
    beyond a reasonable doubt that the accused was not acting in lawful
    self-defence.

[82]

The trial judge then said the
    following about the burden of proof with respect to the third aspect of
    self-defence:

To decide this
    question, you should consider all of the circumstances of [the appellants]
    conduct. Take into account not only the nature of the act alleged but anything
    said about it at the time.
If you are not satisfied beyond a reasonable
    doubt that [the appellant] honestly and reasonably believed that he could only
    save himself from death or serious injury by killing or seriously injuring [Johnston],
    [the appellant] was not acting in lawful self-defence.
You must then return
    to the analysis [of] the essential elements of first degree murder which I will
    discuss below.
If you are satisfied beyond a reasonable doubt that [the
    appellant] did honestly and reasonably believe that he could only save himself
    from death or serious injury by killing or seriously injuring [Johnston], [the
    appellant] was acting in lawful self-defence and you must find [the appellant]
    not guilty and your deliberation on both counts of the indictment would be
    over.
[Emphasis added.]

[83]

In the recharge, the trial judge
    again reviewed the issue of the burden of proof in relation to the third part
    of the test for self-defence:

To decide this
    question, you should consider all the circumstances of [the appellants]
    conduct. Take into account not only the nature of the act alleged but the
    things said at that time.
If you are not satisfied beyond a reasonable doubt
    that [the appellant] did not honestly and reasonably believe that he could only
    save himself from death or serious injury by killing or seriously injuring [Johnston]
    at the time he reasonably believed [Johnston] pulled his gun on him, [the
    appellant] was not acting in lawful self-defence.
You must then return to
    your analysis as to the essential elements of first degree murder, which I will
    discuss below.

If you are
    satisfied beyond a reasonable doubt that [the appellant] did honestly and
    reasonably believe that he could only save himself from death or serious injury
    by killing or seriously injuring [the appellant] [sic]  was acting in lawful
    self-defence and you must find [the appellant] not guilty
and your
    deliberations on both counts of the indictment would be over. [Emphasis added.]

[84]

The trial judges made additional
    references to the burden of proof in her initial instructions. At the beginning
    of the charge, she stated that The person charged, being [the appellant], does
    not have to present evidence or prove anything in this case; in particular,
    that he is innocent of the crimes. From start to finish, it is Crown counsel
    who must prove [the appellant] guilty beyond a reasonable doubt. It is Crown
    counsel who must prove [the appellants] guilt beyond a reasonable doubt, not [the
    appellant] who must prove his innocence. You must find [the appellant] not
    guilty unless Crown counsel satisfies you beyond a reasonable doubt that he is
    guilty. Second, the trial judge provided a
W. (D.)
instruction on two
    occasions. Finally, at the conclusion of the charge, the trial judge stated
    that Every person charged with an offence is presumed to be innocent unless
    and until Crown counsel has proven that persons guilt beyond a reasonable
    doubt. She then reiterated the same paragraph on reasonable doubt from the
    beginning of the charge.

[85]

No additional references were made
    to the burden of proof in the recharge.

(b)
The
    Parties Positions

[86]

The appellant submits that in these passages the trial judge clearly
    misstated the onus in relation to the appellants honest and reasonable belief
    that he could only save himself by killing or seriously injuring Johnston. Crown
    counsel fairly acknowledges these errors but submits that given that the trial judge
    correctly articulated the burden of proof in other parts of the charge, the
    jury would not have been misled that the burden rested on the Crown to satisfy
    the jury beyond a reasonable doubt that the defence of self-defence did not
    apply.

(c)
The
    Governing Principles

[87]

Once self-defence is left with the
    jury, the accused bears no burden to establish that he or she acted in
    self-defence. Rather, as the Supreme Court noted in
R. v. Cinous
, 2002
    SCC 29, [2002] 2 S.C.R. 3, at para. 39, the jury must be told that the burden
    of proof in relation to this defence is on the Crown, who must prove beyond a
    reasonable doubt that the defence does not apply.

[88]

Where the trial judge errs in
    instructing the jury on the burden of proof, the fact that the trial judge
    correctly instructed on that issue elsewhere in the charge is a strong
    indication that the jury were not left in doubt as to the burden resting on the
    Crown:
W. (D.)
, at p. 758. However, as noted above, errors made in answering
    a question from the jury become all the more damaging given that questions tend
    to relate to important parts in the jurys reasoning:
Pétel
, at p. 15.
    Indeed, in
W. (D.)
, the Supreme Court noted that, had the reversal of
    the burden of proof occurred in the course of a response to a question from the
    jury, a new trial would have had to have been ordered: p. 760.

(d)
Application
    of Governing Principles

[89]

Had the reversal of the burden of
    proof occurred only in the main charge, where the errors were cushioned on
    either side by several proper statements of the burden of proof, I may have
    been comfortable saying that the jury would have understood the Crowns onus. Here,
    however, the error was repeated in response to a question from the jury. While
    the question itself did not directly touch on the burden of proof, the trial
    judges response to that question was capable of confusing the jury as to the
    party that bore the burden of proof.

3. Did the Trial
    Judge Err by Failing to Give a
Baxter
Instruction?

(a)
The
    Jury Instructions

[90]

The charge to the jury did not
    contain a specific
Baxter
instruction.

(b)
The
    Parties Positions

[91]

The appellant argues that in this
    case it was an error for the trial judge to have failed to include a
Baxter
instruction in her charge to the jury. A
Baxter
instruction
    was necessary because it was critical for the jury to understand that the
    appellant was not required to engage in detached reflection, as the Crown
    suggested he should have done in the garage, when he was faced with a
    reasonably apprehended attack involving a gun.

[92]

The Crown submits that a nicety or
Baxter
instruction is not a prescribed incantation. The real question is
    whether the charge conveyed the requirement of an honest and reasonable belief
    by the accused that his use of force was necessary. The Crown argues that the
    trial judge, in her instructions, captured the essence of the
Baxter
instruction
    by telling the jury that the appellant was not required to exactly measure his
    necessary defensive action. The Crown relies on the case of
R. v. Krasniqi
,
    2012 ONCA 561, 291 C.C.C. (3d) 236, in which this court dismissed an appeal
    involving a jury charge with exactly the same wording as the trial judges
    charge. The Crown contends that the jury would have understood from the charge
    as a whole that the appellant only needed to honestly believe that his actions
    were necessary in the circumstances. Alternatively, says the Crown, no
    substantial wrong occurred and the absence of a
Baxter
instruction was
    mitigated by the rest of the charge.

(c)
The
    Governing Principles

[93]

A
Baxter
instruction is required to convey that a person
    responding to a reasonably apprehended attack cannot be expected to weigh to a
    nicety, the exact measure of defensive action:
Baxter
, at p. 111;
Krasniqi
,
    at para. 95. As this court explained in
Krasniqi
, at para. 96, it is
    the message in the
Baxter
instruction which must be brought home to
    the jury rather than a specific incantation.
Jurisprudence
    has made it clear that, standing on its own, a failure to give a
Baxter
instruction is not fatal to a charge on self-defence: see e.g.
Krasniqi
, at paras. 96-99
:
R. v. Scotney
, 2011
    ONCA 251, 277 C.C.C. (3d) 186, at paras. 34-38.

(d)
Application
    of the Governing Principles

[94]

In this case, while I would not
    find that the trial judges instructions were irreparably flawed due to the
    lack of this aspect of the charge, its absence does contribute to my assessment
    of the overall adequacy of the charge as it pertained to self-defence.

Summary of the
    Adequacy of the Instructions Regarding Self-Defence

[95]

In my view, the trial judge erred
    by not properly instructing the jury on the issue of self-defence, in three
    respects:

1. She failed to provide a correcting instruction
    following Crown counsels argument that if the jury found that after the garage
    incident the appellant did not avail himself of reasonable opportunities to
    retreat, self-defence was not available to him. The trial judge also failed to
    assist the jury in its obvious confusion about the relevance of the garage
    incident to the defence of self-defence.

2. On a number of occasions, including in answer to a
    question, the trial judge reversed the burden of proof.

3. Finally, the trial judge should have provided but did
    not provide the jury with a
Baxter
instruction.

[96]

In the light of these errors in
    the trial judges instructions on the central issue in this case  self-defence
     I am not satisfied that the jury was provided the assistance necessary to
    assess the appellants defence of self-defence.

[97]

The respondent submits that, given the strength of the Crowns case, the
    proviso ought to apply. I disagree. Self-defence was the key defence at trial. There
    was evidence given which, if believed, was capable of establishing that the
    appellant acted in self-defence when he shot Johnston. It therefore cannot be said
    that the jury would have reached the same conclusion had they received proper
    instructions on the issue of self-defence.

[98]

I would therefore allow the
    appeal on this issue.

THE OTHER GROUNDS OF APPEAL

[99]

Given I would allow the appeal on
    the ground that the trial judge erred in instructing the jury on self-defence,
    I do not intend to deal with the other grounds of appeal, expect by way of
    brief comment.

[100]

The appellant contends that the expert
    evidence of two witnesses relating to the relevance of where the gunshot
    casings were found at the scene of the killing was inadmissible and the trial
    judge ought to have instructed the jury to give no weight to it. Even if the
    evidence was admissible, it ought to have been subject to a clear and forceful
    caution about its limitations.

[101]

The authorities have made it clear
    that experts should be properly qualified in relation to all areas in which the
    expert proposes to testify. A trial judges obligation to properly control the
    reception of expert evidence does not end at the qualification stage. The trial
    judges role is to limit the evidence to areas properly admitted  objection or
    no objection. The evidence of experts must be confined to the witnesss field
    of expertise.

[102]

With respect to the trial judges
    instructions concerning the intent for murder as opposed to manslaughter, the
    appellant submits that the trial judge erred by failing to tell the jury that
    the appellants post-offence conduct could not assist them in determining
    intent and failed to provide a rolled-up charge. In relation to this ground
    of appeal I say only that I would not wish to be taken as approving the
    instructions the appellant challenged in this ground of appeal.

[103]

Finally, concerning the defence of
    provocation, the appellant argues that Johnston provoked the appellant when he
    threatened to kill him and his sister. The sudden reaction was the appellants
    pulling the gun and shooting before having an opportunity to cool down. The
    appellant submits that there was an air of reality to provocation and the trial
    judge erred by not leaving it with the jury. Self-defence and provocation are
    not necessarily incompatible. The fact that the appellant denied acting out of
    anger and testified that he was concerned about his safety and therefore went
    for his weapon does not deprive provocation of an air of reality.

[104]

In my view it would not be
    appropriate to comment on the issue of provocation as whether that issue goes
    to the jury in the next trial and what instructions are appropriate to give
    depends on the evidence adduced at that trial.

DISPOSITION

[105]

Based on this analysis, I would allow
    the appeal, set aside the convictions for second-degree murder and using a
    firearm while committing an indictable offence, and order a new trial.

Released: August 12, 2016 (DW)

Gloria
    Epstein J.A.

I
    agree David Watt J.A.

I
    agree M. Tulloch J.A.





[1]

R. v. Baxter
(1975), 27 C.C.C.
    (2d) 96 (Ont. C.A.).



[2]
Unfortunately, the trial judge did not ask the jury to clarify which assault
    they meant when they asked whether they had to consider the appellants
    opportunity to retreat prior to the assault or after the assault - an option
    that was discussed.


