



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Doucette, 2015 ONCA 583

DATE: 20150828

DOCKET: C53432

Strathy C.J.O., Doherty and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Doucette

Appellant

Candice Suter, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: April 14, 2015

On appeal from the conviction entered on April 27, 2010 and
    the sentence imposed on June 3, 2010 by Justice Eugene G. Ewaschuk of the
    Superior Court of Justice, sitting with a jury.

Doherty J.A.:


OVERVIEW

[1]

The appellant was charged with first degree murder and convicted by a
    jury of second degree murder.  The trial judge imposed a sentence of life
    imprisonment without eligibility for parole for 15 years.  The appellant
    appeals conviction and sentence.

[2]

On the conviction appeal, the appellant contends that the trial judge
    misdirected the jury on an essential element of his self-defence claim and
    erred in law in failing to leave the statutory defence of provocation with the
    jury.  The appellant further argues that the trial judge misstated the evidence
    of two witnesses on matters that were of significance to the defence.  On the
    sentence appeal, the appellant submits that the trial judges finding as to the
    motive for the murder is inconsistent with the jurys acquittal of the appellant
    on the charge of first degree murder.  The appellant also argues that the trial
    judge failed to give proper effect to various mitigating factors.

[3]

For the reasons that follow, I would dismiss the appeal.

THE EVIDENCE AT TRIAL

[4]

The appellant shot and killed Jesse Batisse outside of a Toronto bar at
    about 1:00 a.m. on December 24, 2006.  The Crown alleged that the appellant was
    angry with Mr. Batisse as a result of an earlier altercation in the bar.  On
    the Crowns theory, the appellant, who was much smaller than Mr. Batisse, got
    the worst of that altercation and decided to get his revenge.  The Crown
    contended that the appellant went home and got his gun and returned to the bar
    to await Mr. Batisses departure.  When Mr. Batisse left the bar, the appellant,
    who was waiting for him on the street, approached Mr. Batisse, pulled his gun
    and shot and killed Mr. Batisse.  Mr. Batisse was hit with three bullets.  Two
    entered his chest on a downward trajectory and one entered his back in the
    region of the buttocks.  A fourth shot struck Daniel Pohl-Miranda, Mr.
    Batisses friend.

[5]

The appellant fled the scene and disposed of his weapon.  He was
    arrested about two weeks later.

[6]

The appellant testified.  He described his altercation in the bar with
    Mr. Batisse, depicting Mr. Batisse as the aggressor.  The appellant testified that
    he left the bar and happened to meet his father.  According to the appellant,
    the meeting between himself and Mr. Batisse on the street outside the bar a
    short time after the altercation in the bar was happenstance.  The appellant
    testified that Mr. Batisse was the aggressor from the outset.  He walked toward
    the appellant aggressively, swore at him, threatened him, and then struck him
    in the face.  Mr. Batisse then reached into his waistband for his gun.  The
    appellant had seen that Mr. Batisse was carrying a gun in his waistband earlier
    that evening in the bar.  The appellant testified that he feared for his life,
    drew his gun, which he routinely carried for protection, and fired in self-defence
    as he moved away from Mr. Batisse.  The appellant testified that he did not
    intend to kill Mr. Batisse.

[7]

No gun was found on Mr. Batisses body or at the scene.  None of the witnesses
    who saw any part of the altercation that culminated in Mr. Batisses shooting
    put Mr. Batisse in possession of a firearm.  There was no forensic evidence to
    put Mr. Batisse in possession of a firearm.

[8]

The defence maintained that Daniel Pohl-Miranda, who was with Mr.
    Batisse and was also shot but not seriously hurt, had picked up Mr. Batisses
    gun after Mr. Batisse was shot.  Mr. Pohl-Miranda left the scene in a taxi and
    went to his fathers home and later went to the hospital.  The defence contended
    that Mr. Pohl-Miranda went to his fathers home to dispose of the weapon.

[9]

Matthew Brown, a defence witness, testified that sometime after the
    shooting, Mr. Pohl-Miranda told him that he had picked up Mr. Batisses gun at
    the scene.  According to Mr. Brown, he saw Mr. Pohl-Miranda with the gun.  Mr.
    Brown was familiar with the gun and had seen Mr. Batisse with the same gun sometime
    before the shooting.

[10]

Mr.
    Pohl-Miranda testified and denied any knowledge of any gun at the scene.  He
    also denied that he ever told Mr. Brown that he had picked up the gun or he had
    showed a gun to Mr. Brown.

[11]

The
    jurys acquittal on the charge of first degree murder indicates that it did not
    accept the Crowns argument that the appellant decided to kill Mr. Batisse,
    went home to get his gun, and returned to the street outside of the bar to
    await Mr. Batisses departure from the bar. The conviction on the charge of
    second degree murder indicates that the jury was satisfied beyond a reasonable
    doubt that the appellant fired the gun at Mr. Batisse with the intention
    required for murder and did not act in self-defence.

THE CONVICTION APPEAL

A.

THE ALLEGED MISDIRECTION IN THE SELF-DEFENCE INSTRUCTION

[12]

The trial took place before the enactment of the current self-defence
    provisions (S.C. 2012 c. 9, s. 2).  The trial judge left self-defence as
    defined in the former s. 34(2) with the jury.  That section provides:

Everyone who is unlawfully assaulted and who causes death or
    grievous bodily harm 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.

[13]

Section
    34(2) identifies three elements of a self-defence claim under that section.

·

The accused must have been unlawfully assaulted.

·

The accused must have caused the death of the other person under
    a reasonable apprehension of death or grievous bodily harm.

·

The accused must have believed on reasonable grounds that the
    only way he could save himself from death or grievous bodily harm was by
    killing the other person.

[14]

The
    unlawful assault requirement, the first of the three elements identified above,
    is central to this ground of appeal.

[15]

In
    his self-defence instruction, the trial judge attempted to focus the jurys
    attention on the crucial, factual dispute  did Batisse have a gun and did he
    do something in respect of that gun that caused the appellant to reasonably
    apprehend death or grievous bodily harm and to believe that he could not save
    himself except by pulling out his gun and firing at Mr. Batisse?

[16]

Under
    a heading Starting Point, the trial judge told the jury:

The accused has admitted identity as the person who killed
    Jesse Batisse.  The key issue in this case is whether or not the accused acting
    in lawful self-defence in shooting Mr. Batisse to death and the key factual
    issue is whether or not the deceased, Jesse Batisse, had a gun in his hand
    before the accused, Thomas Doucette, extracted his concealed gun from his
    jacket, if he did so, and shot at the accused four times.

[17]

The
    trial judge described the key factual issue in various ways during his jury
    instruction.  On occasion, he told the jury to consider whether the deceased
    had a gun in his hand; at other times he told the jury to consider whether
    the deceased had exposed a gun; at still other times he told the jury to
    consider whether the deceased had pulled out his gun; and on another occasion
    he told the jury to consider whether the deceased had in fact his gun out
    first and pointed it in the general direction of the accused.

[18]

The
    trial judge repeatedly told the jury that it was incumbent on the Crown to
    prove beyond a reasonable doubt that the appellant had not acted in
    self-defence.  He tied this instruction on the burden of proof to the key
    factual issue in these terms:

Should the Crown fail to satisfy you beyond a reasonable doubt
    that the deceased Batisse did not have a gun in his hand prior to the accused
    Doucette withdrawing his gun, it is most likely that the Crown would have
    failed to satisfy you beyond a reasonable doubt that the defence of
    self-defence is unavailable to the accused.  In other words, the accused must
    be acquitted outright of all charges.

[19]

The
    language used by the trial judge in describing the actions of Mr. Batisse that
    could constitute an assault for the purposes of s. 34(2) tracked the language
    used by the appellant in his description of Mr. Batisses actions.  The
    appellant described a rapidly evolving and escalating confrontation.  It began
    with harsh words, quickly accelerated to a physical assault on the appellant,
    followed immediately by Mr. Batisse going for the gun that was tucked in his
    belt.  In his testimony, the appellant described Mr. Batisses movements that
    precipitated the appellant reaching for his gun in various ways.  Some are set
    out below:

When he reached for his gun, all I thought was this guy was
    gonna kill me and I pulled the gun out of my pocket

I seen his gun coming out at the same time that Im reaching
    for my gun

And I see the quick gesture to grab his gun.  And I see him
    pull it out like this.  And when he has it out, I already have mine out, and I
    ran away

I saw it as Im pulling out my gun too.  We both reach.  Like
    he reach for his gun, I reach more [
sic
] my pocket.  My pockets
    closer to my right hand than him.  And hes intoxicated.  I dont know if hes
    having trouble getting it out or what

I saw him long enough to see that he had pulled out his gun,
    and it looked like he was turning it to point in my direction, and thats when
    I ran away

[20]

In
    essence, the appellant testified that Mr. Batisse was in the process of pulling
    his gun from his waistband when the appellant, acting in self-defence, quickly reached
    into his jacket pocket, pulled out his gun and fired.  As the trial judge
    suggested to the appellant during his testimony, it was the appellants
    position that Mr. Batisse went for his gun, but the appellant beat him to the draw.

[21]

Ms.
    Suter, counsel for the appellant, accepts that the trial judge correctly
    limited his self-defence instruction to s. 34(2).  She also agrees that it was
    incumbent on the trial judge to tailor the self-defence instructions to the
    specific facts of the case.  She submits, however, that in doing so, the trial
    judge had to tell the jury that insofar at the assault component of s. 34(2)
    was concerned, the question was whether the appellant reasonably believed that
    Mr. Batisse was about to shoot him when the appellant pulled his gun and fired
    at Mr. Batisse.  Ms. Suter submits that instead of focusing on the appellants
    belief and the reasonableness of that belief, the trial judge focused on a very
    narrow factual question  who went for their gun first?  She submits that the
    answer to that question would not necessarily determine whether the appellant
    reasonably believed that his life was being threatened by Mr. Batisse.

[22]

Counsel
    submits that a proper instruction on the assault component of s. 34(2) required
    that the jury be told to consider:

·

Did the accused subjectively apprehend that he was being
    unlawfully assaulted?

·

Evaluated objectively, was it reasonable for the accused to
    believe he was being assaulted?

·

Would the assault perceived by the accused be, as an objective
    fact, an unlawful assault?

[23]

Counsel
    is on solid legal ground in submitting that a reasonable belief by an accused
    that he is being assaulted or is about to be assaulted will satisfy the assault
    component of self-defence as defined in the former s. 34(2):  see
R. v. Pé
tal
,
    [1994] 1 S.C.R. 3 at paras.
20-22;
R. v. Currie
(2002), 166 C.C.C. (3d) 190 at paras. 50-52 (Ont. C.A.).
Counsel is
    also correct in her submission that this jury was not instructed to consider whether
    the appellant reasonably believed he was about to be shot by Mr. Batisse when
    he pulled his gun and fired.  The Crown submits, however, that on the facts of
    this case the instruction now urged on appeal was unnecessary and potentially
    confusing.

[24]

Recently,
    Moldaver J., for the court, in
R. v. Rodgerson
, 2015 SCC 38, [2015]
    S.C.J. No. 38, at paras. 50-53, forcefully reiterated the need for trial judges
    to provide jury instructions tailored to the specific case.  As he stressed,
    trial judges must, to the extent compatible with the evidence and the issues in
    the particular case, decant and simplify the jury instruction.  In doing so,
    trial judges should avoid instructions which, while legally correct, are
    unnecessary to a proper and full deliberation of the case as presented to the
    jury.  Moldaver J. observed, at para. 51:

The failure to isolate the critical issues in a case and tailor
    the charge to them inevitably makes the instructions less helpful to the jury
    and adds unnecessarily to their length and complexity.

[25]

The
    trial judges approach in this case did isolate the crucial factual issue for
    the jury.  The self-defence claim depended entirely on the appellants
    evidence.  According to his evidence, he was moved to shoot Mr. Batisse because
    he saw him pulling his gun from his waistband.  The appellants evidence leaves
    no realistic basis for the suggestion that although Mr. Batisse may not in fact
    have been armed or may not in fact have been removing the gun from his
    waistband, the appellant reasonably believed that he was armed and was drawing
    his weapon.  Drawing a distinction between what the appellant reasonably
    believed and what the appellant said happened was unwarranted on this evidence
    and could only lead to unnecessary complexity in the jury instruction: see
R.
    v. Stewart
, 2014 ONCA 70, 306 C.C.C. (3d) 269, at paras. 26-31;
R. v.
    Rochon
, [2003] O.J. No. 1155 (C.A.), at paras. 36-38.

[26]

I
    do not accept the submission that the trial judge mischaracterized or
    denigrated the self-defence claim by telling the jury that the defence turned
    on the jurys determination of who drew his weapon first.  The appellant did
    not suggest that he feared for his life before he saw Mr. Batisse drawing his
    weapon.  It was that action which the appellant relied on to justify the deadly
    force he used.  If the jury was satisfied that the appellant pulled out his
    weapon before he saw Mr. Batisse pulling out his, there was no factual basis
    for the self-defence claim.

[27]

I
    also cannot accept that the trial judge materially misstated the appellants
    evidence in directing the jury as to the evidentiary basis for the self-defence
    claim.  As set out above, the trial judge used different phrases to describe
    the actions of the deceased that the appellant said led him to use deadly
    force. The appellant also used different phrases in describing the actions of
    the deceased.

[28]

Read
    as a whole, I think the trial judges instructions would convey to the jury a
    proper understanding of the unlawful assault component of s. 34(2). Namely,
    that it was made out unless the Crown proved beyond a reasonable doubt that Mr.
    Batisse was not in the process of reaching for and pulling his gun out from his
    waistband when the appellant removed his gun from his pocket and shot and
    killed Mr. Batisse.  In my view, that was an accurate statement of the unlawful
    assault requirement in s. 34(2) in the context of the evidence adduced in this
    case.

B.

was the statutory defence of provocation available?

[29]

Counsel
    for the appellant at trial asked that provocation be left with the jury.  The
    trial judge refused to leave the defence, noting that it was inconsistent with
    the self-defence claim advanced by the appellant in his evidence.  The
    appellant submits that the trial judge erred in law in refusing to leave the
    defence.

[30]

The
    defence of provocation is predicated on a loss of self-control in response to a
    wrongful act or insult.  By its very nature, it is somewhat inconsistent with a
    self-defence claim which asserts a justifiable reaction to a threat or assault. 
    However, both defences can be available on the evidence.  As with any defence,
    provocation must be left with jury if there is evidence upon which a properly
    instructed jury, acting reasonably, could give effect to the defence:
R.
    v. Gauthier
, 2013 SCC 32, [2013] 2 S.C.R. 403, at para. 23;
R. v.
    Cairney
, 2013 SCC 55, [2013] 3 S.C.R. 420 at paras. 21-22.  The air of
    reality test looks at the totality of the evidence and at the conduct of the
    trial as a whole.  The fact that a defence is incompatible with the primary
    defence advanced at trial does not mean there is no air of reality to that
    defence:
Gauthier
, at para. 32;
R. v. Graveline
, 2006 SCC
    16, [2006] 1 S.C.R. 609, at para. 10.

[31]

The
    nature of the primary defence advanced may, however, factor into a
    consideration of whether there is an air of reality to a defence which
    conflicts with the primary defence.  As explained in
R. v. Pappas
, 2013
    SCC 56, [2013] 2 S.C.R. 452, the air of reality inquiry demands a limited
    weighing of the evidence.  Defences are not properly left with the jury if
    supported only by some isolated piece of evidence ripped from the context of
    the rest of the evidence.  Thus, in
Pappas
, the appellants assertion
    that he had snapped in response to comments by the deceased could not, having
    regard to the totality of the evidence, cause a jury to reasonably have a doubt
    as to whether the appellant had lost control as a result of the deceaseds
    implied threat:
Pappas
, at para. 41; see also
R. v. Krasniqi
,
    2012 ONCA 561, 291 C.C.C. (3d) 236, at para. 56.  In short, the entirety of the
    record must provide a basis upon which a jury could
reasonably
give
    effect to the defence.

[32]

The
    elements of the defence of provocation as set out in s. 232 of the
Criminal
    Code
are well known and need not be
    repeated here:  see
R. v. Tran
, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 25-38.  For present
    purposes, I need focus only on the subjective
component of the
    defence.

[33]

Provocation
    is available if an accused acted in response to an unlawful act or insult on
    the sudden before there was time for his passion to cool.  As with the other
    elements of the defence, it is the Crowns responsibility to negate this element
    of the defence:  see
Tran
, at paras. 36-38.

[34]

On
    the appellants evidence, he was assaulted by Mr. Batisse on the street
    immediately before he shot him.  However, there is no suggestion in the
    appellants evidence that he lost control or responded in the heat of the
    moment to Mr. Batisses threatening conduct.  To the contrary, on the
    appellants evidence, he had tried to calm Mr. Batisse down, both during the
    altercation inside the bar and again when Mr. Batisse approached him
    aggressively on the street.  In his examination-in-chief, the appellant testified
    that he shot Mr. Batisse because he feared for his life, intending only to get
    away before I was shot.  The appellants evidence effectively negates any
    suggestion that he had lost control when he pulled his gun and fired in Mr.
    Batisses direction.

[35]

The
    only reference to anger in the appellants testimony occurred during his
    cross-examination.  The appellant acknowledged that he started to become
    angry on the street when his repeated attempts to calm Mr. Batisse down and
    avoid conflict with him did not appear to be working.  On the appellants
    evidence, immediately after he started to become angry, Mr. Batisse struck
    him in the face knocking him backwards.  As he was stumbling back, the
    appellant saw Mr. Batisses gun coming out.  The appellant responded by
    pulling his gun and shooting Mr. Batisse.

[36]

As
    indicated in
Pappas
, the appellants single reference to becoming
    angry cannot be used in isolation to suggest a loss of control which warrants
    a provocation instruction.  Considered in its entirety, the appellants
    evidence not only provided no basis for a provocation instruction, but strongly
    pointed away from any suggestion that the appellant had acted out of any
    emotion other than a justifiable need to save his own life.

[37]

Nothing
    in the rest of the evidence gives any air of reality to a provocation claim. 
    According to Mr. Batisses friends, it was the appellant who was the aggressor
    on the street.  On their evidence, he confronted Mr. Batisse and shot him in
    cold blood.  The evidence of the independent witnesses who observed part of the
    altercation, while far less incriminating from the appellants perspective,
    offered no support for a provocation defence.

[38]

The
    trial judge properly refused to leave provocation with the jury.

C.

the alleged misdirection on the evidence of the witness Lisa gray

[39]

Lisa
    Gray happened to be standing outside having a cigarette when she saw an
    argument between two men.  She described one as tall and slim and the other as
    shorter.  Ms. Gray went back inside a bar only to hear shots shortly
    afterwards.  She returned outside a few minutes later and saw the tall man
    lying in an alcove on the ground.  He had been shot.

[40]

The
    defence called Ms. Gray apparently to support the appellants evidence that he
    and Mr. Batisse had argued on the street immediately before the shooting.  The
    Crown maintained, based on Ms. Grays description of the persons involved in
    the argument, that Ms. Gray had in fact seen Mr. Pohl-Miranda and his girlfriend
    arguing on the street.  Ms. Gray had described the tall person involved in the
    argument as slim.  Mr. Batisse weighed 300 pounds.

[41]

The
    trial judge made three references to Ms. Grays evidence in his instructions to
    the jury.  One reference, made in the context of setting out the position of
    the defence, described Ms. Grays evidence from the defence perspective.  A second
    reference put the Crowns position with respect to her evidence to the jury. 
    The other reference to Ms. Grays evidence occurred in the course of the trial
    judges explanation that different witnesses could see the same events differently. 
    After referring to Ms. Grays description of the two people involved in the
    argument, the trial judge opined that based on her description of the people
    involved, Ms. Gray had likely seen Mr. Pohl-Miranda and his girlfriend
    arguing.  He pointed out that Ms. Gray was standing some distance away in the
    dark.

[42]

It
    is unfortunate that the trial judge weighed in to support the Crowns
    interpretation of Ms. Grays evidence over that advanced by the defence.  The
    jury was perfectly capable of addressing the competing arguments without the benefit
    of the trial judges opinion.

[43]

I
    am satisfied, however, that the trial judges comments did not cause any
    prejudice.  Ms. Grays evidence was of little value to the Crown or the defence. 
    There was no dispute that the appellant and Mr. Batisse had a confrontation on
    the street that involved some kind of verbal exchange followed by gunfire.  Ms.
    Grays evidence, regardless of the interpretation one might take of it, did not
    meaningfully advance the case for either the Crown or the defence.

D.

the alleged misapprehension of matthew browns evidence

[44]

Matthew
    Brown was a defence witness.  He was called for two purposes.  First, to put a
    handgun in the possession of Mr. Batisse at some time prior to the shooting
    and, second, to put the same handgun in the possession of Mr. Batisses friend,
    Mr. Pohl-Miranda, sometime after the shooting.  This evidence was offered to
    support the defence position that Mr. Batisse had a gun when the appellant shot
    him and that Mr. Pohl-Miranda had taken it from the scene of the shooting.

[45]

Mr.
    Brown testified that Mr. Batisse was a very good friend of his.  He indicated
    that he had seen Mr. Batisse with a handgun and described the gun in some
    detail.  He also testified that he saw Mr. Pohl-Miranda with the same gun about
    three months after Mr. Batisse was shot.  According to Mr. Brown, Mr. Pohl-Miranda
    said he had picked the gun up at the scene after Mr. Batisse was shot.

[46]

Mr.
    Browns evidence as to when he saw Mr. Batisse with the gun is not clear.  In
    his examination-in-chief, immediately after counsel for the appellant established
    Mr. Brown had seen Mr. Batisse in possession of a gun, the following exchange
    occurred between counsel and Mr. Brown:

Q. Now when you were in custody, on the 23
rd
and 24
th
of 06 how long  when did you go in, do you recall?

A. It was May 24 weekend prior to that.

Q. Did you see the gun before this date?

A. Yeah I have.

[47]

There
    were no further questions in-chief about when Mr. Brown saw Mr. Batisse with
    the gun.

[48]

In
    cross-examination, Mr. Brown was asked about being incarcerated on the May long
    weekend in 2006.  He told counsel that he was jailed for impaired driving and
    fail to provide a breath sample, but that he was required to remain in custody
    on other charges.  The other charges were not identified.

[49]

Crown
    counsels cross-examination concluded with the following:

Q. And when were you shown this gun?

A. Two months  two weeks before I went to custody, I got
    arrested for B and E.

Q. And where did you see it?

A. Tastys at the bar, a bar we used to chill out every day.
    Tastys.

[50]

In
    reply, and by way of an agreed statement of fact, the jury was told that Mr.
    Batisse was in custody from January 22, 2006 until November 21, 2006.

[51]

Both
    counsel, in their closing arguments, referred to Mr. Brown as having testified
    that he saw the gun in Mr. Batisses possession about two weeks before he went
    into custody on the May long weekend in 2006.  The defence argued that while
    Mr. Brown was in error as to the date, given that Mr. Batisse was in custody at
    that time, his error should not undermine the credibility of his evidence that
    he had seen Mr. Batisse with the gun before Mr. Batisse was shot and later saw the
    same gun in the possession of Mr. Pohl-Miranda.

[52]

In
    his closing instructions, the trial judge, not surprisingly, took the same view
    of the evidence as had counsel.  He told the jury, that based upon the admitted
    fact that Mr. Batisse was in jail in May 2006, Mr. Brown could not have seen
    him in possession of the gun some two weeks before the May holiday as he
    testified.  The trial judge went on to say:

That flagrant mistake on Browns part may indicate that he is
    perjuring himself as part of a plot to save his classmates brother from
    conviction.  After all, the accused has no chance of acquittal whatsoever
    unless a gun somehow appears in Jesse Batisses hand immediately prior to his
    being shot.

[53]

On
    appeal, counsel submits that the trial counsel and the trial judge
    misunderstood Mr. Browns evidence.  Counsel argues that Mr. Brown testified
    that he went to jail in May 2006 on drinking and driving-related charges, but
    that he placed the time at which he saw Mr. Batisse with the gun by reference
    to Mr. Browns incarceration on break and enter charges.  The date on which he
    was incarcerated on these charges was never identified.  Counsel submits that
    evidence that Mr. Batisse was in jail between January and November 2006 did
    not, therefore, mean that Mr. Brown was wrong in his recollection of when he saw
    Mr. Batisse with the gun.

[54]

I
    agree that Mr. Browns evidence about when he saw the gun in Mr. Batisses
    possession is far from clear.  It was, however, open to the interpretation
    given to it by counsel and the trial judge.  Mr. Brown testified he went to jail
    on the May long weekend in 2006 for drinking-related charges and continued in
    custody on other charges.  No one inquired as to the nature of those additional
    charges.  They may have involved a break and enter charge.  It is important to
    bear in mind that it was counsel for the appellant who first linked the timing
    of Mr. Browns being shown the gun by Mr. Batisse with Mr. Browns
    incarceration on the May long weekend in 2006.  Mr. Brown was a defence witness
    and one must presume that counsel was aware of the nature of his evidence.

[55]

The
    appellant has failed to demonstrate, based on the trial record, that the trial
    judge misapprehended Mr. Browns evidence as to when he saw a gun in Mr.
    Batisses possession.

[56]

The
    appellant also seeks to adduce fresh evidence on appeal in support of the
    argument that everyone at trial misunderstood Mr. Browns evidence about when
    he saw the gun.  In substance, the fresh evidence is proffered to show that Mr.
    Brown was charged with breaking and entering in December 2005 and not May
    2006.  Mr. Batisse was not in custody in the entire two months leading up to
    Mr. Browns arrest for breaking and entering in December 2005.  Consequently,
    argues the appellant, Mr. Browns evidence as to when Mr. Batisse showed him
    the gun is not as demonstrably false as suggested at trial.

[57]

Notably
    absent from the proffered fresh evidence, is anything from Mr. Brown purporting
    to clarify when he was shown the gun by Mr. Batisse.  The appellants position
    is that the various court documents filed make it safe to assume that Mr.
    Browns reference to being arrested for break and enter is a reference to the
    arrest in December 2005.  It may be, or it may not be.  Without anything from Mr.
    Brown, the evidence proffered on appeal has little, if any, probative value and
    could not reasonably be expected to have affected the verdict.  I would not
    admit the fresh evidence.

E.

conclusion

[58]

I
    would dismiss the conviction appeal.

the sentence appeal

[59]

In
    imposing a sentence of life imprisonment without eligibility for parole for 15
    years, the trial judge said:

I have often said, and it bears repeating, that the use of guns
    in Toronto is a scourge to this community and must be stopped.  The use of guns
    can be deterred only by the imposition of exemplary sentences.

[60]

This
    court has repeatedly said the same thing:  e.g. see
R. v .Danvers
,
    [2005] O.J. No. 3532, paras. 75-78;
R. v. Paredes
(2014), 317 C.C.C.
    (3d) 415, at para. 44 (Ont. C.A.).

[61]

The
    circumstances of this murder placed it squarely among those that demand a
    strong denunciatory sentence.  The appellant, armed with a loaded handgun,
    opened fire on Mr. Batisse on a public street.  He not only shot Mr. Batisse
    three times, he wounded Mr. Miranda with a fourth shot.

[62]

The
    appellant acknowledged in his evidence that he routinely carried a loaded
    handgun on the streets of Toronto.  He was on bail at the time he shot Mr.
    Batisse and the terms of his bail prohibited him from possessing a firearm.  He
    was also in violation of a curfew term of that bail.  The appellant has a
    criminal record that includes an assault and a threatening charge.

[63]

These
    circumstances, all aggravating, justified the imposition of a period of parole
    ineligibility beyond the 10-year minimum, despite the appellants youth.  He
    was 20 years old at the time of the murder.  This court will not interfere with
    the parole ineligibility period chosen by a trial judge unless the appellant
    demonstrates error in principle or convinces the court that the period of
    ineligibility is manifestly excessive.

[64]

Counsel
    for the appellant diligently advanced various alleged errors in principle made
    by the trial judge.  I am satisfied that the trial judge did not err in
    principle.  I do not propose to examine each argument separately, but will
    refer to two of the arguments advanced by counsel.

[65]

The
    appellant argues that the trial judge was not entitled to find for the purposes
    of sentencing that Mr. Batisse was unarmed when shot by the appellant.  She
    submits that the jurys verdict does not necessarily mean that Mr. Batisse was
    unarmed.  The verdict means only that the jury rejected the appellants
    evidence that he pulled his gun in response to Mr. Batisses reaching for and
    pulling out his gun.

[66]

I
    accept that the jurys verdict does not necessarily mean that the jury was
    satisfied that Mr. Batisse was unarmed, although the verdict strongly suggests
    that conclusion.  It was, however, open to the trial judge on the evidence to
    find for the purposes of sentencing that Mr. Batisse was unarmed:  see
Criminal
    Code
, s. 724(3)(a)(e).  In any event, it does not appear to me that the
    trial judge treated the fact that Mr. Batisse was unarmed as a separate
    aggravating factor on sentence.

[67]

Counsel
    also submitted that the trial judges finding that the murder was an
    execution was inconsistent with the jurys verdict acquitting the appellant
    on the charge of first degree murder.  The trial judges language may be open
    to the interpretation urged by counsel.  It must, however, be read in the
    context of the verdicts.  The trial judge was clearly alive to the fact that
    the appellant was acquitted on the charge of first degree murder.  I read the
    trial judge as indicating that the appellant waited outside of the bar to
    avenge the disrespect he had suffered at Mr. Batisses hands in the bar. 
    When Mr. Batisse emerged and continued to treat the appellant with disdain, the
    appellant decided to kill him.  He pulled out his gun and fired four times from
    close range, striking Mr. Batisse in the chest twice.  I take this to be the
    basis for the trial judges description of the murder as an execution.

[68]

The
    sentence imposed by the trial judge is not out of line with sentences imposed
    in similar cases involving youthful offenders convicted of second degree
    murder:  see
Danvers
,
supra
;
R. v. Stewart
, 2014
    ONCA 70, affg, [2008] O.J. No. 5449.  I cannot say that the sentence is
    manifestly excessive.

[69]

I
    would dismiss the sentence appeal.

Released: DD  AUG 28 2015

Doherty J.A.

I agree G.R. Strathy
    C.J.O.

I agree Eileen E.
    Gillese J.A.


