



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohamad, 2018 ONCA 966

DATE: 20181130

DOCKET: C58511

Strathy C.J.O., Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohand Mohamad

Appellant

James Lockyer and Alexander Ostroff, for the appellant

Gillian Roberts, for the respondent

Heard: April 23-24, 2018

On appeal from the conviction entered by Justice John
    McIsaac of the Superior Court of Justice, sitting with a jury, on July 28, 2013,
    and from the sentence imposed on September 6, 2013, with reasons reported at 2014
    ONSC 1354.

Watt J.A.:

[1]

Arash Bakhtaryani held two grudges. One was more deep-seated than the
    other. Both were about money. The same money. Bakhtaryanis money. And about
    how that money disappeared from the person to whom Bakhtaryani had entrusted it
    for safekeeping.

[2]

Bakhtaryani held a grudge against Seyed Alireza Ali Amiri, a drug
    dealer with whom Bakhtaryani left $20,000 for safekeeping. Bakhtaryani
    suspected Amiri had been complicit in an alleged robbery at Amiris residence
    in mid-2007. At that time, two masked men allegedly broke into Amiris home and
    robbed him of $60,000. The money taken in the robbery included Bakhtaryanis
    $20,000.

[3]

Bakhtaryani recovered about half of his loss through payments by Amiri
    and his father, some of which included proceeds of an insurance claim.

[4]

Bakhtaryani harboured a more deep-seated grudge against Mohand Mohamad. Bakhtaryani
    believed Mohamad had set up the home invasion robbery at Amiris residence.

[5]

One cold January night, about three and one-half years after the
    robbery, all three men were at a stag party in a banquet hall in Vaughan. At
    different times, Bakhtaryani confronted both men in a room at the banquet hall.

[6]

After a brief exchange inside the banquet hall, Bakhtaryani and Mohamad
    left within seconds of one another. Outside, they headed in the same direction.
    Each was armed. Bakhtaryani had one or two knives he had taken from a table in
    the banquet hall. Mohamad had a gun. A .45 calibre, fully loaded,
    semi-automatic handgun.

[7]

Bakhtaryani and Mohamad met in a darkened laneway around the corner not
    far from an entrance to the banquet hall. There, Mohamad shot Bakhtaryani four
    times with the .45 calibre semi-automatic handgun he had brought with him. Bakhtaryani
    died of his wounds.

[8]

Mohamad was charged with first degree murder. He admitted shooting and
    killing Bakhtaryani. He claimed that he shot Bakhtaryani in lawful
    self-defence. Or, at worst, that the killing was provoked, and thus his crime
    was manslaughter and not murder.

[9]

A jury found Mohamad guilty of second degree murder. The trial judge
    imposed the mandatory sentence of imprisonment for life and set the parole
    ineligibility period at 16 years.

[10]

Mohand
    Mohamad appeals his conviction. He also appeals the period of parole
    ineligibility fixed by the trial judge. These reasons explain why I am
    satisfied that both appeals fail and should be dismissed.

THE BACKGROUND FACTS

[11]

The
    relevant events that culminated in the shooting death of Bakhtaryani took place
    at the Paradise Banquet Hall on the evening of January 21, 2011. It was there,
    in the Queen Mary Room, that a stag party was being held for Shervin Mahravan,
    a friend of Mohand Mohamad.

[12]

The
    Queen Mary Room is one of several rooms at the Paradise Banquet Hall. A veranda
    covers the entrance. The entrance doors lead to a vestibule. A second set of
    doors opens to a foyer. In the foyer there is a water fountain. Security
    cameras record events taking place in the room and foyer.

[13]

Along
    the west side of the banquet hall a paved driveway passes under the veranda of
    the Queen Mary Room, continues south past the entrance to the Queen Anne Room,
    and then turns southeast around a corner for about 75 feet. The lane then jogs
    east beside the south wall of the banquet hall before it opens onto the south
    parking lot. Adjacent to the south wall are several lined parking spaces.

[14]

Surveillance
    cameras record the portion of the driveway that lies next to the veranda of the
    Queen Mary Room, but not around the corner.

The Principals and their Relationship

[15]

As
    mentioned, Bakhtaryani believed that Mohamad was involved in the robbery of Amiri.
    According to Amiri, Bakhtaryani had an obsession with revenge on those
    responsible. Amiri confronted Mohamad about his involvement. Mohamad denied it.
    He distanced himself from Bakhtaryani, whom he considered unpredictable. From
    time to time, Bakhtaryani also blamed Amiri for the robbery and sent him a
    series of threatening texts.

[16]

In
    the months before he died, Bakhtaryani told Amiri that he was going to kill
    Mohamad. He explained to Amiri that he had figured out where Mohamad lived. The
    killing was to take place soon.

[17]

Mohand
    Mohamad worked at a pet store and as a part-time car salesman. He was also a
    drug dealer who sold marijuana and some cocaine.

[18]

In
    2008, he bought a .45 calibre semi-automatic handgun for protection in his drug
    dealings, which included purchases of large amounts of marijuana from others
    with whom he was unfamiliar.

[19]

At
    the time of the shooting, Bakhtaryani lived with Sean McDermott, a crucial
    Crown witness at Mohand Mohamads trial.

The Stag Party

[20]

On
    January 21, 2011 Shervin Mahravan held a stag party in the Queen Mary Room at
    Paradise Banquet Hall to celebrate his upcoming wedding. He gave tickets to his
    friends, including Mohand Mohamad. Sean McDermott attended the stag party with
    other invited guests. Bakhtaryani was not an invited guest.

[21]

Amiri
    arrived about an hour after McDermott. McDermott greeted Amiri. This caused Amiri
    to become concerned that Bakhtaryani might appear. At 8:23 p.m. McDermott
    texted Bakhtaryani, Get down here, that Ali crackhead is here.

Amiri and Bakhtaryani

[22]

About
    one and one-half hours after McDermott sent him the text message, Bakhtaryani
    arrived at the banquet hall.

[23]

Shortly
    thereafter, Bakhtaryani spoke to Amiri. At trial, Bakhtaryani was described as shaking
    and angry during this conversation. He asked Amiri to follow him. Amiri did
    so. They spoke again. Suddenly, Bakhtaryani slapped Amiri very hard, knocking Amiri
    back. Others separated the two men. Each went his own way into different parts
    of the ballroom.

[24]

Amiri
    tried to reason with Bakhtaryani when they spoke again near the doors.
    Terrified of Bakhtaryani, Amiri left the banquet hall in a taxi.

The Arrival of Mohand Mohamad

[25]

Shortly
    after 11:00 p.m. Mohand Mohamad arrived at the banquet hall. He parked his
    vehicle in a space by the south wall and walked into the building. As he passed
    by Bakhtaryanis table on his way to greet the host, Mohamad and Bakhtaryani
    spoke briefly in a language other than English. Bakhtaryani then told McDermott
    that he had been waiting to see Mohamad and was going to speak to him.

The Knife

[26]

Bakhtaryani
    stood up at his table. He picked up a steak knife and put it in his back
    pocket, then grabbed his coat.

The Departure

[27]

Setting
    out for the exit, Mohand Mohamad passed by Bakhtaryani, who asked McDermott to
    go outside with him. McDermott told Bakhtaryani to stop it. McDermott and another
    guest named Dave Reed nevertheless followed Bakhtaryani, who spoke to or
    gestured to Mohamad on his way out. Mohamad, Bakhtaryani, and McDermott left
    the building by the same doors within seconds of one another.

The Shooting

[28]

Bakhtaryani
    was shot to death south of an entrance to the Paradise Banquet Hall near a
    parked car. His roommate, Sean McDermott, was not far away. McDermott gave
    various accounts at different times about what he had or had not seen.

[29]

When
    McDermott turned the corner and walked in a southeasterly direction, he noticed
    two men further south down the driveway. Bakhtaryani was about 50 feet away
    with his back towards McDermott. Another person was about 15 feet further south
    facing towards Bakhtaryani. McDermott testified that he heard the men speaking
    to one another in a different language. Bakhtaryani moved aggressively
    towards the second man. McDermott was unable to see whether Bakhtaryani had a
    knife in his hand. McDermott believed that the second man was the same man to
    whom Bakhtaryani had spoken before leaving the banquet hall.

[30]

Sean
    McDermott was unsure about the number of shots he heard fired. There were three,
    four, or maybe more. Bakhtaryani fell to the ground. The other man fled towards
    the south parking lot. McDermott took out his cellphone to call 911, but when
    he saw the headlights of a vehicle coming towards him, he hid. He said he may
    have heard more shots at that time.

[31]

Dave
    Reed, who had left the hall with McDermott following Bakhtaryani, testified
    that he had heard three or four shots, but could not see anything because of
    the lighting in the area.

[32]

A
    man and his girlfriend were plowing snow in the south parking lot of the
    banquet hall when the shooting occurred. They heard a bang, then one or two
    seconds later, two more bangs.

[33]

Several
    of the relevant events were recorded on security video from the cameras
    installed inside and outside the banquet hall. The videos were available for
    jury use during deliberations.

Movement of the Body

[34]

Sean
    McDermott asked the snow plow operator or his girlfriend to call 911. McDermott
    returned to Bakhtaryanis body. A few feet away from the body, he saw a
    cellphone and a knife. He picked up the knife and the phone and began to drag
    his roommates body back towards the banquet hall. Three other men helped him
    carry Bakhtaryani back to the banquet hall foyer. At trial, McDermott thought
    he dropped the knife on the way back to the banquet hall.

The Removal of the Knife

[35]

The
    men carrying Bakhtaryanis body put it on a table in the foyer near a fountain.
    Reed removed a knife from Bakhtaryanis pocket or from the table under the body
    and threw it in the fountain.

The Findings at the Scene

[36]

Investigators
    found bloodstains on the ground between two parked cars in the laneway around
    the southwestern corner of the building. In front of the Queen Anne Room, they
    found a bloodstain and a stainless steel steak knife on the pavement. Near the
    parked vehicles, police located four .45 calibre shell casings. All had been
    fired from the same gun. The weapon was never recovered.

The Cause of Death

[37]

Arash
Bakhtaryani suffered four gunshot wounds. Bullets
    entered his left and right chest, as well as his right rear ribcage and the
    front of his right thigh. The examining pathologist, Dr. Michael Pollanen,
    could not determine the sequence of the shots or the position of the victim
    when the shots were fired. While the Crown argued that the autopsy results
    showed that Bakhtaryani was lying in his back when the thigh wound was
    inflicted, Dr. Pollanen testified that the results were also consistent with
    the gunshot wound being inflicted when Bakhtaryani was upright with his knee
    parallel to the ground. He also testified that none of the wounds were
    immediately fatal and the victim could have continued to move after he had been
    shot.

The Post-Offence Conduct

[38]

Mohand
    Mohamad fled from the parking lot of the Paradise Banquet Hall immediately
    after the shooting. He and his girlfriend checked into a downtown Toronto hotel
    about three hours later. He later drove to Ottawa with his girlfriend. He was
    arrested there about one month later. Police found passport photos taken
    shortly before his arrest, but no passport application. On arrest, Mohamad
    denied any involvement in the killing of the victim. At trial he admitted that
    denial was false.

[39]

While
    in Ottawa, Mohand Mohamad sold the motor vehicle he had driven the night of the
    shooting. Nonetheless, forensic investigators found six particles of gunshot
    residue (GSR) on the front windowsill and four more on the back. According to Dr.
    David Ruddell, the forensic examiner, the number of particles found was not a
    lot in light of the hundreds of thousands of particles dispelled when a gun is
    fired. The examiner said that the GSR evidence was consistent with shots being
    fired from inside the car, but it was equally consistent with those areas of
    the car being touched by someone who had already fired the shots.

[40]

As
    he explained in his testimony at trial, Mohand Mohamad went through his car
    after the shooting, removed his belongings, and wiped down the interior. He put
    the gun in a garbage bag and disposed of it in a dumpster.

Mohand Mohamads Version of the Events

[41]

Mohamad
    testified that Bakhtaryani accused him of knowing who was responsible for the
    2007 robbery of Amiri, but Mohamad denied it. Later, Mohamad heard that Bakhtaryani
    wanted to fuck him up.

[42]

On
    the night of the shooting, Mohamad planned to buy 10 pounds of marijuana from
    another dealer. The sale was to take place in the downtown area. The purchase
    price was $27,000. Mohamad did not know the other dealer, so he took along his
    .45 calibre handgun. The dealer was unavailable for an hour, so Mohamad drove
    to the stag party at Paradise Banquet Hall.

[43]

As
    he entered the banquet hall, Mohand Mohamad saw Bakhtaryani sitting at a table
    with some bikers. Bakhtaryani asked in English, Where the fuck you been all
    these years? Mohamad continued on his way to congratulate the host, then
    headed towards the foyer. Bakhtaryani said, Yo! as two others got up from his
    table. Bakhtaryani then gestured for Mohamad to go to him. Mohamad exited
    through the doors. He jogged to the southwestern corner of the building, but Bakhtaryani
    continued to follow him, speaking aggressively.

[44]

In
    pursuit, Bakhtaryani shouted forcefully, Yo, Mo! As he turned the corner into
    Mohamads view, Bakhtaryani yelled, Where the fuck you going? You dont
    fucking hear me calling you? Mohamad then told Bakhtaryani to calm down. Bakhtaryani
    continued his advance and added, What, you think you can hide forever, pussy?
    Ive been waiting to fuck you up. Bakhtaryani seemed to be hiding something in
    his right hand flush to his side. McDermott rounded the corner. He yelled to Bakhtaryani.
    Bakhtaryani turned and responded to McDermott, Yo, I got this.

[45]

When
    Mohand Mohamad saw that Bakhtaryani had a knife in his hand, he thought his
    life was in danger. He backed away. He racked his gun. He said Stop. He fired
    two shots but Bakhtaryani continued to advance. Mohamad fired two more shots. Bakhtaryani
    spun and fell to the ground, landing on his back.

[46]

After
    the shooting, Mohand Mohamad ran to his car. He put the gun on the front seat,
    then moved it to the console. He saw Bakhtaryani on the ground near the parked
    car. He did not stop. He did not fire any more shots.

The Sharp-Edge Weapons Evidence

[47]

Steven
    Summerville, a former police officer, was qualified as an expert in several
    areas. Use of force. Risk assessment. Self-defence. Sharp edge weapons defence.
    And the palming of weapons. He described experiments designed to estimate
    reaction time to sharp-edged weapons. The most realistic distance for officers
    to be able to timely respond was found to be at least 21 feet. That distance allowed
    officers to recognize the threat, successfully engage their firearm and
    discharge at least two rounds to stop the advance of the threat towards them. Summerville
    testified that an attacker walking aggressively in low lighting at a distance
    of 22 feet poses a potentially lethal risk to the person who is pursued. Lethal
    force would be the appropriate response, not running away or firing a warning
    shot. It is almost impossible to protect oneself from an attack from behind.

The Positions of the Parties at Trial

[48]

At
    trial, the Crown contended that Mohand Mohamad lured Arash Bakhtaryani outside,
    where he lay in wait for him around the corner of the building in the dark.
    There, he shot Bakhtaryani once, then twice more after Bakhtaryani had fallen
    to the ground. As he drove away, Mohamad fired a fourth shot as the victim lay
    on the ground.

[49]

The
    Crown argued that Mohamads post-offence conduct belied any suggestion that his
    conduct in shooting Bakhtaryani was in lawful self-defence. The Crown also
    argued that the GSR in the motor vehicle confirmed that the final shot was
    fired from that vehicle. This also confirmed the planned and deliberate nature
    of the killing.

[50]

Defence
    counsel invited the jury to find Mohand Mohamad not guilty, relying on a theory
    of self-defence. As the video showed and other evidence confirmed, Bakhtaryani
    was armed with at least one knife. He advanced towards Mohamad, knife in hand.
    Mohamad responded as anyone in similar circumstances would have.

[51]

Defence
    counsel urged the jury to reject the evidence of Sean McDermott as that of a
    thoroughly unreliable witness whose testimony was not confirmed in any material
    way. The GSR residue evidence was equivocal, equally consistent with Mohamads version
    of the events as with the Crown's theory. In light of Mohamads criminal record
    and his use of an unlicensed handgun, his lies to the police are not
    necessarily indicative of his guilt on the murder charge.

The Grounds of Appeal

[52]

On
    the appeal from conviction, the appellant advances five grounds of appeal. He
    says that the trial judge erred:

i.

in
    admitting, under the principled exception to the hearsay rule, both Sean
    McDermotts preliminary inquiry testimony and his
B (K.G.)
statement;

ii.

in
    misapprehending confirmatory evidence for the testimony of Sean McDermott;

iii.

in permitting
    the trial Crown to suggest in cross-examination of the appellant and in his
    closing address to the jury that the appellant had tailored his evidence to
    explain away the case for the Crown;

iv.

in instructing
    the jury on self-defence under the current provisions of s. 34 of the
Criminal
    Code
rather than in accordance with the provisions in force at the time the
    deceased was killed; and

v.

in
    responding to a jury request for a read-back of Sean McDermotts
B (K.G.)
statement without including the cross-examination of McDermott at the
    preliminary inquiry or trial.
[1]


[53]

On
    the appeal from sentence, the appellant contends that the trial judge erred in
    principle by relying on an aggravating factor unsupported by the evidence as a
    basis upon which to impose an enhanced period of parole ineligibility.

THE APPEAL FROM CONVICTION

Ground #1: The Prior Statement and Evidence of Sean McDermott

[54]

This
    ground of appeal has to do with the trial judges decision to admit, under the
    principled exception to the hearsay rule, the videotaped
B (K.G.)
statement of Sean McDermott, as well as the evidence McDermott gave at the
    appellants preliminary inquiry. Neither the statement nor a transcript of
    McDermotts preliminary inquiry testimony was filed as an exhibit at trial, and
    thus neither was included in the exhibits sent to the jury room for the jury to
    review during their deliberations.

[55]

Sean
    McDermott was called as a witness by the Crown at trial. As the only witness,
    apart from the principals, who was in a position to see the fatal altercation
    in the laneway, McDermotts testimony occupied centre stage in any purported
    demonstration of guilt. His lack of enthusiasm for his role was palpable.

[56]

Several
    factors persuaded the trial judge to give a
Vetrovec
caution in connection
    with the testimony of Sean McDermott. The close connection between McDermott
    and the deceased. McDermotts prior criminal record. His attitude toward the
    court process. The inconsistencies in his statements.

[57]

To
    appreciate the argument advanced in support of this ground of appeal, it is
    helpful to review briefly the circumstances in which Sean McDermott spoke to
    investigators and gave evidence at the appellants preliminary inquiry and
    trial.

The Early Police Statements

[58]

Within
    hours of the shooting, Sean McDermott was interviewed twice by investigators.
    During each interview Sean McDermott told police that he heard gunshots while
    he was outside the foyer of the banquet hall smoking a cigarette. He went
    around the corner of the banquet hall. He found the deceased on the ground. He
    claimed not to know where the deceased lived or whether the deceased had a
    roommate. The reality was quite different. Bakhtaryani and McDermott were
    roommates.

[59]

From
    the outset, Sean McDermott made it clear that he wanted nothing to do with the
    police investigation into the deceaseds death. He insisted that the police
    could not hold him. He did not want to be bothered.

The Video Statement

[60]

About
    eight and one-half hours after the second interview ended, police interviewed
    Sean McDermott for a third time. The interview was videotaped and later
    transcribed.

[61]

As
    the videotaped interview began, the investigating officer, who had conducted both
    previous interviews, emphasized the need for McDermott to tell the truth. The
    officer pointed out that lying to the police during an investigation was an
    offence. For his part, McDermott wanted to know what the police knew about the
    shooting. He mentioned security videos. The officer declined to provide
    McDermott with any investigative details and said nothing about any video
    surveillance footage.

[62]

Towards
    the end of this interview, a commissioner administered an oath to McDermott.
    The officer advised McDermott that an untruthful account could constitute the
    offences of fabricating evidence, obstructing justice, or mischief. McDermott
    swore that he had told the officer the truth. He also acknowledged that the
    police had not provided him anything in return for his statement or threatened
    him to obtain it.

The Preliminary Inquiry

[63]

Sean
    McDermott was subpoenaed to testify for the Crown at the appellants
    preliminary inquiry. McDermott did not appear as required by the subpoena. He
    was arrested and appeared at the inquiry while in custody.

[64]

At
    the preliminary inquiry, Sean McDermott made it abundantly clear that he did
    not want to attend court proceedings or testify. On at least a dozen occasions,
    the Crown was required to refresh McDermotts memory to elicit details about
    the events leading up to and following the shooting of the deceased.

[65]

Despite
    McDermotts contemptuous attitude towards the court process and his repeated claims
    of amnesia, he testified and was subject to cross-examination at the inquiry.
    The only limitations on cross-examination arose from McDermotts intransigence
    and claimed loss of memory.

The Trial Testimony

[66]

McDermotts
    obduracy continued at trial. Crown counsel frequently refreshed McDermotts
    memory about various events then successfully applied under s. 9(2) of the
Canada
    Evidence Act to
cross-examine McDermott on his prior statement. The
    principal subjects about which McDermott changed his testimony or claimed
    amnesia included the following: whether the shooter was the same person whom
    the deceased had followed out of the banquet hall, the circumstances in which
    the shooting occurred, and whether McDermott had heard any gunshots fired from
    the shooters car as he drove away from the scene.

The Positions of the Parties at Trial

[67]

At
    trial, the Crown contended that the requirements of necessity and reliability
    had been met in connection with both the
B (K.G.)
statement and
    McDermotts testimony at the preliminary inquiry.

[68]

On
    necessity, the Crown submitted that at trial McDermott had recanted his prior
    descriptions of relevant events, thus holding those versions hostage and
    making it necessary that they be admitted to obtain a full and candid account
    of relevant events. The reliability requirement had been met in connection with
    the
B. (K.G.)
statement because it had been videotaped, made under oath,
    and accompanied by clear and repeated warnings about the consequences of lying.
    In addition, McDermott was available for cross-examination at trial. The
    evidence at the preliminary inquiry was given under oath, in open court, in the
    presence of the appellant, and subject to cross-examination, as it would be if
    admitted at trial.

[69]

Trial
    counsel for the appellant took the position that neither the
B. (K.G.)
statement
    nor McDermotts preliminary inquiry evidence satisfied the necessity
    requirement of the principled exception to the hearsay rule. Neither was
    necessary because McDermott had not actually recanted what he had said earlier
    in his evidence at trial. He did not hold either earlier version hostage, and
    thus the Crown had not established, on a balance of probabilities, that their
    introduction at trial was necessary to ensure that the jury received a full and
    candid account of relevant events.

[70]

Defence
    counsel also challenged the reliability of the
B. (K.G.)
statement on
    the basis that the administration of the oath and the provision of warnings
    about the consequences of lying
after
the statement had been made were
    inadequate to establish procedural reliability. To get hold of the declarants conscience,
    the warnings must be given and the oath administered in advance of the
    statement, not thereafter. Defence counsel did not contest the threshold reliability
    of McDermotts preliminary inquiry testimony.

The Ruling of the Trial Judge

[71]

The
    trial judge admitted both McDermotts
B. (K.G.)
statement and his
    testimony at the preliminary inquiry under the principled exception to the
    hearsay rule.

[72]

The
    trial judge characterized McDermotts evidence at trial as an amalgam of recantation
    and feigned claims of memory loss by a person asserting that he was an
    eyewitness to the shooting death of his roommate. McDermott displayed an
    obstructive attitude in the presence of the jury, fostered by a view that it
    was unhealthy to appear cooperative in light of his criminal affiliations. In
    practical terms, this combination of factors insulated the disclosure of the
    true events as captured in the
B. (K.G.)
statement and preliminary
    inquiry evidence from forensic scrutiny at trial and thus satisfied the
    necessity requirement.

[73]

In
    connection with the
B. (K.G.)
statement, the trial judge was satisfied
    that procedural reliability was established by several factors, including that
    the statement

i.

was videotaped in its entirely;

ii.

was taken under oath;

iii.

was accompanied by warnings about the penal consequences of lying about
    relevant events; and

iv.

was that of a declarant who was present and subject to cross-examination
    at trial.

[74]

In
    connection with the testimony of Sean McDermott at the preliminary inquiry, the
    trial judge similarly reasoned that the combined effect of several factors
    satisfied the reliability requirement:

i.

the evidence was given under oath;

ii.

the evidence was given in a public courtroom in the presence of the
    accused;

iii.

the declarant was subject to full cross-examination on his testimony at
    the preliminary inquiry; and

iv.

the declarant was present and available for full cross-examination at
    trial.

The Arguments on Appeal

[75]

As
    the appellant began his oral submissions on this ground of appeal, he abandoned
    his written submission that the trial judges finding of necessity was flawed as
    a result of a misapprehension of the evidence adduced at trial. Instead, he
    advanced two arguments in support of this ground of appeal:

i.

that the trial judge erred in admitting
both
the
B. (K.G.)
statement
    and McDermotts evidence at the preliminary inquiry, since each was duplicative
    of the other; and

ii.

that the trial judge erred in finding that substantive reliability had
    been established in connection with the
B. (K.G.)
statement by
    corroborating evidence.

[76]

In
    his submissions on the first argument, the appellant begins by pointing out
    that it was the trial judge who raised this issue with counsel during argument
    of the Crowns motion to admit the evidence. The fact that trial counsel for
    the appellant did not make any submissions on the issue, he argues, did not
    relieve the trial judge of his obligation to decide whether any principle
    foreclosed the introduction of cumulative hearsay. Despite having raised the
    issue, the trial judge did not further consider it, let alone decide it, and
    simply admitted both the statement and the preliminary inquiry evidence.

[77]

The
    appellant says that, for all practical purposes, the
B. (K.G.)
statement
    and the preliminary inquiry evidence were duplicates. That they were so is
    relevant to the necessity requirement of the principled exception to the
    hearsay rule. Prior decisions of this court have held that such cumulative
    hearsay should not be received. There is no necessity for further statements
    that simply repeat the substance of a prior statement. In this case, both versions
    were lengthy, detailed, and as a result prejudicial to the appellant. This
    prejudice was enhanced by Crown counsels reference to the substance of the hearsay
    evidence in his closing address.

[78]

Turning
    to his second argument, the appellant acknowledges that the threshold
    reliability requirement may be met on the basis of:

·

substantive reliability;

·

procedural reliability; or

·

some combination of substantive and procedural reliability.

[79]

The
    appellant says that the trial judges substantive reliability analysis is
    flawed. This is because the corroborative evidence upon which the trial judge
    relied to establish substantive reliability does not satisfy the standard laid
    down in
R. v. Bradshaw
, 2017 SCC 35, [2017] 1 SCR 865, a decision
    rendered after trial proceedings in this case had concluded. For evidence to be
    corroborative of the hearsay statement, the evidence must show that the
only
explanation for the hearsay statement is that the declarant was truthful about
    the statement or that the statement was accurate. Here, the evidence relied
    upon to establish substantive reliability consisted of expert opinion about
    potential origins of GSR in the appellants car. This evidence was at best ambiguous
    and thus incapable of satisfying the stringent standard set by
Bradshaw
for corroborative evidence.

[80]

The
    appellant also challenges the adequacy of procedural reliability to satisfy the
    reliability prerequisite of the principled exception to the hearsay rule. About
    all that can be said for procedural reliability of the
B. (K.G.)
statement
    is that it was videotaped. The delayed administration of the oath was too
    little, too late. Because it was administered late, the oath got no hold on the
    conscience of McDermott, if ever an oath could do so. In the result, neither
    procedural nor substantive reliability was established at trial and thus neither
    the
B. (K.G.)
statement nor the preliminary inquiry evidence should have
    been admitted at trial.

[81]

The
    respondent joins issue with the appellant on both claims of error. In the
    respondents view, the
B. (K.G.)
statement and the preliminary inquiry
    evidence were each properly admitted under the principled exception to the
    hearsay rule. And the reception of both did not contravene any principle that
    excludes cumulative hearsay.

[82]

The
    respondent says that any injunction against cumulative hearsay bars only truly
    duplicative statements, not the statements at issue here, which contain
    significant differences. What is more, the defence counsel in this case wanted
    both the
B. (K.G.)
statement and the preliminary hearing evidence
    admitted. This enabled counsel to demonstrate the evolving nature of
    McDermotts account and the inconsistencies within and among the various versions.
    Inconsistencies about lighting and visibility. About the distance between the
    combatants and McDermott. And about the number and sequence of the shots.

[83]

The
    respondent also queries the reach of the exclusionary rule the appellant
    invokes. It is not some bright line rule which excludes all but one hearsay
    statement about the same subject-matter. Rather, it is at best an aspect or
    incident of a cost-benefit analysis, which in each case requires a
    case-sensitive examination of the circumstances to determine whether the
    benefit gained by introduction of cumulative hearsay is overborne by its cost
    to the criminal trial process. Here, the balance favoured admission.

[84]

In
    connection with the assertion that the trial judges reliability analysis was
    flawed because of his error in relying on corroborative evidence in assessing
    substantive reliability, the respondent points out that, like the cumulative
    hearsay submission, this argument was not raised at trial. There, the contest
    was over necessity in light of what was said to be a congruity between the
    trial and earlier versions.

[85]

At
    all events, the respondent continues, the reliability component of the
    principled exception to the hearsay rule was plainly established at trial.
    Trial counsel conceded that the evidence given at the preliminary inquiry under
    oath, in the presence of the appellant and subject to a full opportunity for
    defence counsel to cross-examine McDermott, satisfied the reliability
    requirement in connection with a witness who was also present and subject to
    cross-examination at trial.

[86]

The
    respondent points out that the reliability requirement can be satisfied on the
    basis of procedural reliability, substantive reliability, or some combination
    of the two. Even if the trial judge  was wrong according to the subsequent
    authority of
Bradshaw
in his use of corroborative evidence to assist in
    establishing substantive reliability, the error is of no consequence. The
B.
    (K.G.)
statement satisfied the requirements of procedural reliability. It
    was videotaped. It was under oath and subject to several warnings about the
    penal consequences of lying. The officer explained that the oath was not
    administered at the beginning because of concerns about scaring off an
    uncooperative McDermott. This was understandable and the timing of the oath did
    not make a real difference.

[87]

When
    the statement was taken, McDermott clearly thought that the police had a video
    of the shooting, and that falsehoods would therefore be easily unmasked. In
    addition, he was available for cross-examination at trial.

The Governing Principles

[88]

The
    principles that control our decision on this issue are those that govern the
    reception of hearsay under the principled exception. That exception is engaged
    when the proponent of the evidence establishes, on a balance of probabilities,
    that the twin and cumulative requirements of necessity and reliability have
    been satisfied. However, removal of the hearsay rule as a bar to admissibility
    does
not
mean that the evidence will be received. For it may be that the
    application of the general cost-benefit analysis mentioned in
R. v. Mohan
,
    [1994] 2 S.C.R. 9, will result in exclusion despite satisfaction of the
    requirements of the principled exception:
R. v. Khelawon,
2006 SCC 57,
    [2006] 2 S.C.R. 787, at para. 3;
R. v. Hawkins
, [1996] 3 S.C.R. 1043, at
    para. 85.

[89]

In
    this case, the hearsay challenges are more focused.

[90]

What
    is involved in the challenge to
necessity
here is a claim that the
    necessity requirement cannot be met in respect of a second or subsequent
    hearsay statement that does not differ in substance from one already received
    under the principled exception. A claim, in other words, that cumulative
    hearsay fails to satisfy the necessity requirement.

[91]

The
reliability
controversy fastens primarily upon substantive reliability.
    More particularly, it concerns the viability of the trial judges finding of
    reliability in light of his allegedly improper treatment of certain evidence as
    corroborative. There is also a challenge to procedural reliability based on the
    timing of the administration of the oath and warnings about the penal
    consequences of lying to the police.

[92]

These
    claims of error require consideration of the principles that govern reception
    of cumulative hearsay statements, as well as those that supervise the interplay
    between substantive and procedural reliability and the role of corroborative
    evidence in the analysis of substantive reliability.

[93]

I
    begin with the principles relating to cumulative hearsay.

[94]

Previous
    authority from this court has held that the necessity requirement of the
    principled exception to the hearsay rule may not be met when a hearsay
    statement, duplicative of a statement already admitted under the principled
    exception, is proposed for reception.

[95]

In
R. v. Rahayel
, 2015 ONCA 377, 324 C.C.C. (3d) 362, the trial judge
    admitted the preliminary inquiry testimony of the complainant who had died
    before trial. The Crown then tendered a videotaped statement made by the
    complainant proposing that it be admitted under the principled exception to the
    hearsay rule. The contents of the videotaped statement were identical in
    various important points to the preliminary inquiry evidence. Defence counsel
    consented to the admission of the evidence. The trial judge, satisfied that the
    requirements of necessity and reliability had been met, admitted the videotaped
    statement as evidence.

[96]

On appeal from conviction, this court held that the requirement of
    necessity was not established in connection with the videotaped statement. What
    the complainant had said in her videotaped statement was not necessary since it
    was already before the court through her preliminary inquiry testimony:
Rahayel
,
    at para. 73. The criterion of necessity would not permit the introduction of
    evidence which simply repeats statements already admitted. This evidence  the
    duplicative statement  may have little or no probative value but engender
    great prejudice:
Rahayel
, at para. 73. See also,
R. v. Meaney
(1996), 111 C.C.C (3d) 55 (Nfld. C.A.), at p. 74;
R. v. C. (R.)
(2005),
    77 O.R. (3d) 364 (C.A.), at para. 20. The
Rahayel
court also considered
    that the introduction of the videotaped statement offended the rule prohibiting
    the introduction of prior consistent statements, absent an applicable
    exception:
Rahayel
, at para. 80.

[97]

On the other hand, different circumstances have resulted in the
    reception of multiple statements from a hearsay declarant, at least where it has
    been necessary to do so to obtain a full account from that declarant: see, for
    example,
R. v. Hamilton
, 2011 ONCA 399, 271 C.C.C. (3d) 208, at paras.
    179-180;
R. v. Assoun
, 2006 NSCA 47, 244 N.S.R. (2d) 96, at paras.
    76-77;
R. v. MacDonald
, 2000 NSCA 60, 184 N.S.R. (2d) 1, at paras.
    84-85.

[98]

Next,
    proof of reliability.

[99]

A
    party proposing the reception of hearsay in accordance with the principled
    exception may establish the reliability prerequisite by different means.
    Procedural reliability. Substantive reliability. These mechanisms or approaches
    to proof of reliability are not mutually exclusive but work in tandem:
Bradshaw
,
    at para. 32;
R. v. Chretien
, 2014 ONCA 403, 309 C.C.C. (3d) 418, at
    para. 52.

[100]

Procedural
reliability
    is established when there are adequate substitutes for testing the evidence
    tendered for admission given that the declarant has not provided that evidence
    in court, under oath, in the presence of the trier of fact and under the
    scrutiny of contemporaneous cross-examination. These substitutes for
    traditional safeguards, such as video recording the statement, the presence of
    an oath, and a warning about the consequences of lying must provide a
    satisfactory basis for the trier of fact to rationally evaluate the truthfulness
    and accuracy of the hearsay statement. That said, some form of
    cross-examination of the declarant is usually required, whether at a
    preliminary inquiry or at trial:
Bradshaw
, at para. 28;
Khelawon
,
    at paras. 63 and 66;
Hawkins
, at para. 75;
R. v. Couture
, 2007
    SCC 28, [2007] 2 S.C.R. 517, at paras. 92 and 95.

[101]

Substantive
reliability is established by showing that the statement proposed for admission
    is inherently trustworthy. To determine inherent trustworthiness, a court can
    consider the circumstances in which the statement was made, as well as any
    evidence that corroborates or conflicts with the statement:
Bradshaw
, at
    para. 30;
Khelawon
, at paras. 4, 62 and 94-100.

[102]

The standard for
    substantive reliability is high. Although a trial judge need not be satisfied
    about reliability to an absolute certainty, the judge must be satisfied that
    the statement is sufficiently reliable that contemporaneous cross-examination
    would add little, if anything, to the process:
Bradshaw
, at para. 31;
Khelawon
,
    at para. 49.

[103]

In evaluating
    substantive reliability, a trial judge can only rely on corroborative evidence
    if that evidence, considered as a whole and in the circumstances of the case,
    shows that the only likely explanation for the hearsay statement is the
    declarants truthfulness about or the accuracy of material aspects of the
    statement:
Bradshaw
, at para. 44.

[104]

Corroborative
    evidence must relate to the truthfulness or accuracy of material aspects of the
    declarants hearsay statement. And at the stage of threshold reliability,
    corroborative evidence must work in conjunction with the circumstances in which
    the statement was made to overcome the specific hearsay dangers raised by the
    tendered statement:
Bradshaw
, at paras. 45 and 47.

The Principles Applied

[105]

As I will
    explain, I would not give effect to either aspect of this ground of appeal.

[106]

At trial, the
    appellants principal, if not exclusive, challenge to the admissibility of the
B.
    (K.G.)
statement and preliminary inquiry evidence of McDermott focused on
    the necessity requirement. Neither the
B. (K.G.)
statement

nor
    the preliminary inquiry evidence was necessary, he maintained, because
    McDermott had not recanted either in giving evidence before the jury. The
    appellant did
not
contest threshold reliability in respect of either
    the
B. (K.G.)
statement

or the preliminary inquiry evidence.

[107]

In this court,
    apart from the argument that necessity cannot be established for duplicative
    hearsay statements, the appellant has abandoned his challenge to the trial
    judges finding that the necessity prerequisite had been established. In the
    absence of any such challenge, I will proceed on the basis that, considered
    individually, necessity has been established

[108]

Before turning
    to the cumulative hearsay argument, I will consider whether the statements at
    issue satisfied the requirement of threshold reliability.

[109]

As a general
    rule, testimony given at a preliminary inquiry will usually satisfy the
    threshold reliability prerequisite of the principled exception to the hearsay
    rule:
Hawkins
, at paras. 76-77. McDermotts evidence was given under
    oath, in the presence of the appellant. McDermott was subject to
    cross-examination by defence counsel. The inquiry involved the same issues and
    the same parties. Although the trier of fact at trial was not present to
    observe proceedings at the preliminary inquiry, it was present when McDermott
    testified at trial and witnessed his cross-examination on his preliminary
    inquiry testimony.

[110]

There is no
    reason to depart from the general rule in this case. McDermotts preliminary
    inquiry evidence satisfied the threshold reliability prerequisite of the
    principled exception to the hearsay rule.

[111]

Turning to the issue of threshold reliability in connection with the
B.
    (K.G.)
statement, it is helpful to begin by recalling the basis upon which
    the trial judge found threshold reliability established. In his reasons for
    admitting the evidence, reported at
R. v. Mohamad
, 2014 ONSC 1350, the
    trial judge noted:

[16] Turning to the reliability component, the following procedural
    circumstances all support admission of the K.G.B. statement:

·

it was videotaped;

·

it was confirmed by oath;

·

Mr. McDermott was advised of the penal consequences that may flow
    from providing false information; and

·

the availability of Mr. McDermott for cross-examination at trial.

[112]

It was only
    after he had made these core findings that the trial judge mentioned an
    additional substantive component in the following terms:

[17] In addition to these factors, I agree with the Crown that
    there is an additional substantive component which supports the reliability of
    this statement.  This is the expectation by Mr. McDermott that the entire
    episode had been captured by the surveillance cameras.  At the time he was
    interviewed on January 23, 2011, it is clear to me that he anticipated that
    everything he reported to Detective Reid would be confirmed when the police had
    an opportunity to review the video recordings.  In my view, there was a
    significant motive for Mr. McDermott to be truthful.

[18] Finally, there is forensic evidence of gunshot residue around
    the front passenger [window] of the vehicle used by the accused on the night in
    question that could confirm Mr. McDermotts KGB statement of the coup de
    grâce administered as the shooter left the premises. [Citation omitted.]

[113]

Several reasons
    persuade me that the appellants claim of error in relation to the trial
    judges reliance on this corroborative evidence fails.

[114]

First, as a
    matter of general principle, a proponent who seeks to introduce relevant and
    material evidence may rely on alternative bases to establish its admissibility.
    It is enough for the proponent to satisfy the requirements of one alternative,
    even if the requirements of the other alternative cannot be satisfied. For
    example, the testimony of a witness at a preliminary inquiry may not satisfy
    the statutory requirements of s. 715 of the
Criminal Code
, but may
    nevertheless be substantively admissible at an ensuing trial under the
    principled exception to the hearsay rule:
Hawkins
, at para. 82. Such evidence
    would be admitted.

[115]

Second, under
    the principled exception to the hearsay rule, a proponent may rely on
    procedural reliability, substantive reliability, or some combination of each to
    satisfy the reliability prerequisite. The alternatives are not mutually
    exclusive. Where the elements of one have been established on a balance of
    probabilities, it is no answer for an opponent to contend that the evidence
    does not satisfy the other. Procedural reliability and substantive reliability
    afford two routes to the same destination  threshold reliability. They are
    equivalents in the quest to establish threshold reliability.

[116]

Third, on my
    reading of the reasons of the trial judge for finding the reliability
    requirement satisfied for the
B. (K.G.)
statement, he grounded his
    ruling on procedural, not substantive reliability. The statement was videotaped
    and confirmed by oath. McDermott was advised of the penal consequences of
    providing false information. And McDermott was available for cross-examination
    at trial.

[117]

The appellants
    complaint that the delayed administration of the oath and recitation of the
    warnings about the penal consequences of falsehoods do not satisfy the oath
    component of procedural reliability is unavailing. While it is usual to
    administer the oath and deliver the warnings in advance of providing the
    statement, the interview was nonetheless under oath and accompanied by
    warnings. It is also worthy of reminder that the most important factor
    supporting the admissibility of a prior statement of a non-accused witness for
    the truth of its contents is the availability of that witness for
    cross-examination at trial:
R. v. Youvarajah
, 2013 SCC 41, [2013] 2
    S.C.R. 720, at para. 35;
Couture
, at para. 95.

[118]

Further, even
    assuming that the trial judge mishandled the GSR evidence by treating it as
    corroborative of the
B. (K.G.)
statement, its use did not mar or
    impair his core findings on the procedural reliability analysis. Corroborative
    or conflicting evidence is usually associated with a substantive reliability analysis
    because it sheds light on the circumstances in which the statement was made.
    But substantial reliability is not the basis upon which the
B. (K.G.)
statement was admitted at trial.

[119]

Finally, this
    ground was not advanced by trial counsel as a basis upon which to exclude the
B.
    (K.G.)
statement under the principled exception. Indeed, trial counsel
    appears to have taken no issue with the proof of the reliability component.

[120]

Nor am I
    persuaded that what I have characterized as the cumulative hearsay claim can
    succeed in the circumstances of this case.

[121]

This argument
    was not raised at trial. But there is more to it than a simple failure to
    advance the argument at trial. On more than one occasion during the course of
    submissions on the admissibility issue, defence counsel suggested that
both
the
B. (K.G.)
statement and preliminary inquiry evidence should be
    admitted. This permitted defence counsel to argue to the jury, as he did, that
    the version of relevant events about which McDermott testified was like a
    chameleon. Ever-changing, according to the audience. It made McDermott an incredible
    witness. A purveyor of unreliable testimony.

[122]

Further, when
    the trial judge expressly invited defence counsel to take a position about whether
    the necessity requirement could be satisfied where an additional statement
    repeated the contents of one already admitted, the defence counsel (not counsel
    on appeal) never did respond to the trial judges query.

[123]

Third, when the
    various precedents are tolled, it is difficult to tease out any bright line
    rule that enjoins
all
cumulative hearsay. The principled approach
    mandates a case-sensitive inquiry to determine whether the prerequisites of
    necessity and reliability have been established in the case at hand. A more
    nuanced approach, as opposed to a
per se
rule, is therefore preferable.

[124]

In this case,
    the
B. (K.G.)
statement and the preliminary inquiry evidence had much
    in common. But as the trial judge observed, they are not replicas. And
    sometimes, as here, the defence sees value in an exposition of the statement
    history, for example, to demonstrate reliability concerns with the evidence of
    a tainted witness.

[125]

As I have said,
    I would not give effect to this ground of appeal.

Ground #2: The Confirmatory Evidence

[126]

This ground of
    appeal targets one aspect of the trial judges
Vetrovec
caution on the
    evidence of Sean McDermott. The appellant does not complain about the core
    elements of the instruction:

i.

the identification of McDermott as a
Vetrovec
witness;

ii.

the characteristics of McDermott rendering his evidence subject to the
    caution;

iii.

the language of the caution; or

iv.

the desirability of confirmatory evidence.

[127]

The complaint
    here fastens on two items of evidence the trial judge left to the jury as
    potentially confirmatory of the testimony of Sean McDermott.

[128]

To properly
    appreciate and evaluate this ground of appeal, it is helpful to recall the
    positions taken by counsel at trial on this issue, as well as the trial judges
    final instructions about it.

The Pre-Charge Discussions

[129]

It was
    uncontested at trial that the testimony of Sean McDermott warranted a
Vetrovec
caution. During discussions about what should be said on this issue, the trial
    judge invited submissions from counsel on his obligation to provide the jury
    with illustrations of potentially confirmatory evidence.

[130]

The principal
    submissions from counsel on both sides concerned the confirmatory potential of
    the evidence of Dr. Pollanen, the forensic pathologist, about the trajectory of
    the shots and the position of the deceased when those shots were fired,
    especially the shot that caused the thigh wound. The trial judge suggested that
    this evidence could support McDermotts claim that Mohamad shot the deceased at
    least once when he was lying on the ground. The defence objected on the basis
    that Dr. Pollanens evidence was inconclusive about the position of the
    deceased, and that the evidence was consistent with the deceased having been
    upright.

[131]

Defence counsel
    appears not to have been concerned with the confirmatory potential of the
    opinion evidence about the origins of GSR residue in the appellants motor vehicle.
    He seems to have been equally unconcerned about the evidence of the snow plow
    operator and his girlfriend who testified concerning the number and sequence of
    gunshots they heard in the parking lot of the banquet hall.

The Charge to the Jury

[132]

In his
Vetrovec
caution
    on the evidence of Sean McDermott, the trial judge:

i.

identified Sean
    McDermott as the witness whose testimony was subject to this special
    instruction;

ii.

explained the reasons underlying the caution, including McDermotts
    criminal record, his inconsistent accounts about relevant events, his close
    connection to the deceased, and his ongoing criminal activities;

iii.

advised the jury that they could rely on the testimony of Sean McDermott
    even if it was not confirmed by the testimony of another witness or other
    witnesses;

iv.

cautioned the jury that it was dangerous for them to rely on McDermotts
    evidence unless it was confirmed by the testimony of another witness or other
    evidence; and

v.

explained that to be confirmatory, the evidence should help restore the
    jurys faith in the relevant parts of Sean McDermotts testimony.

[133]

Before offering
    illustrations of potentially confirmatory evidence, the trial judge emphasized
    that the warning about acting on the unconfirmed evidence of McDermott applied
    only to the extent that McDermotts testimony incriminated the appellant. The
    warning had no application at all to any of McDermotts evidence that was
    exculpatory of the appellant, such as McDermotts testimony that he found a
    knife beside the deceaseds body, a fact which tended to support the
    appellants claim of self-defence.

[134]

The trial judge
    introduced his instructions about potentially confirmatory evidence in this
    way:

You may find that there is some evidence in this case that
    confirms or supports some parts of Sean McDermotts evidence. It is for you to
    say whether this or any evidence confirms or supports his version of the events
    in question and how that affects whether or how much you will believe of or
    rely on his evidence in deciding this case. The evidence to which I am about to
    refer illustrates the kind of evidence that you may find confirms or supports
    Sean McDermotts evidence. It may help you. It may not. It is for you to say.

[135]

The trial judge
    then illustrated potentially confirmatory evidence with four examples:

i.

the expert evidence about the potential origins of GSR residue found
    inside the appellants car;

ii.

the evidence of the snow plow operator and his girlfriend about the
    timing, number and sequence of the shots they heard;

iii.

the testimony of Dr. Pollanen, especially what he said about the
    sequence of the shots and the position of the deceased at the time the thigh
    wound was inflicted; and

iv.

the video from the security cameras.

[136]

Defence counsel
    did not object to the charge to the jury.

The Arguments on Appeal

[137]

The appellant
    contends that the trial judge was wrong in leaving the evidence of the snow
    plow operator and his girlfriend and the opinion testimony of Dr. Pollanen
    about the deceaseds position when the thigh wound was inflicted as potentially
    confirmatory of the evidence of Sean McDermott. On the other hand, the
    appellant concedes that the trial judge was right to leave as potential
    confirmation both the expert evidence of Dr. Ruddell about GSR and the footage
    from the surveillance cameras at the banquet hall.

[138]

The appellant
    says that the testimony of the snow plow operator and his girlfriend lacked the
    certainty required for it to have any confirmatory potential. The trial judge
    suggested that their testimony could support McDermotts claim that there were
    two volleys of shots, one when Mohamad was on foot and one when he was in the
    car. However, neither witness heard a shot from the appellants car after the
    first volley of shots had been fired. The initial testimony of the snow plow
    operator supported the appellants version. In addition to the error in leaving
    this evidence to the jury as potentially confirmatory of the testimony of
    McDermott, the trial judge summarized the evidence inaccurately.

[139]

As for the
    expert opinion of Dr. Pollanen, the appellant advances two reasons why it
    lacked confirmatory potential. Dr. Pollanens testimony about the position of
    the deceased when the thigh wound was inflicted was inconclusive. The shots
    could have been fired and the wound inflicted as the deceased was standing with
    his knee lifted or falling backwards, rather than lying on his back. And the
    precise scenario posited by the trial judge as having confirmatory potential 
    that the shot was fired from above as the deceased lay on the ground  was
    never put to Dr. Pollanen, and thus formed no part of his testimony.

[140]

The respondents
    principal position is that the contested items of evidence had confirmatory
    potential and thus were properly left for the jury to consider. Each item was
    left in a balanced way by the trial judge, its confirmatory potential fairly
    put and limited to those parts of McDermotts testimony which incriminated the
    appellant. The respondent also asks us to bear in mind that trial judges are afforded
    considerable latitude in the manner in which they approach
Vetrovec
warnings in general, and their illustration of
    potentially confirmatory evidence in particular.

[141]

Taking first the
    testimony of the snow plow operator and his girlfriend about the number and
    sequence of the shots, the respondent says that the trial judge fairly
    described the evidence and its potential value as confirmatory of McDermotts
    description. He was careful to lay out the deficiencies in the evidence as
    well. For instance, the trial judge reminded the jury that neither witness
    claimed to have heard a fourth shot, although at least four shots had been
    fired.

[142]

The testimony of
    Dr. Pollanen also had confirmatory potential. McDermott said that the shooter
    shot the deceased as he lay on the ground. The appellant denied having done so,
    asserting that the deceased spun and fell on his back. Dr. Pollanens evidence
    about an entry wound to the deceaseds back tended to confirm McDermotts
    version, as did Dr. Pollanens evidence about the angle and position of the
    deceaseds wounds.

[143]

As an
    alternative submission, the respondent argues that any errors in the trial
    judges illustrations of potentially confirmatory evidence did not prejudice
    the appellant. The trial judge properly defined what constitutes confirmatory
    evidence and made it clear that what he said about it was illustrative, not
    definitive. Defence counsel did not object to the instructions. The
    instructions significantly underplayed the confirmatory potential of the video
    surveillance footage that afforded powerful confirmation of McDermotts
    version. A more expansive instruction would not have assisted the appellant.

The Governing Principles

[144]

The nature of the error claimed here does not compel a
    widespread trawl of the precedents exploring the borderland of
Vetrovec
cautions. But something should be said about the nature
    of confirmatory evidence, the trial judges obligation to provide illustrations
    of evidence with confirmatory potential, and the impact of errors in any
    illustrations provided.

[145]

I begin with a return to
    the origin of the species:
R v. Vetrovec,
[1982] 1 S.C.R.
    811.


[146]

Prior to
Vetrovec
,
    a rule of law  the accomplice rule  required a trial judge to warn a jury
    that although they could convict on the uncorroborated evidence of an
    accomplice, it was dangerous for them to do so. And corroboration, which the
    judge was obliged to define, meant evidence independent of the accomplices
    testimony which implicated the accused in a material particular. Evidence was
    potentially corroborative of an accomplices testimony if it had a specific
    implicative quality about it, that is to say, if it confirmed in a material
    particular not only that a crime had been committed, but that it was the
    accused who had committed it:
Vetrovec
,
at p. 824.



[147]

In addition to stating
    the accomplice rule and defining corroboration, the judge was required to list
    any and all the evidence adduced at trial which was capable of constituting
    corroboration. Whether the trial record revealed any evidence of corroborative
    potential and, if so, what that evidence was became a matter of law:
Vetrovec
,
at pp. 824-825. Since judicial
    decisions about the corroborative potential of evidence and instructions to the
    jury on the issue involved questions of law, they were subject to a standard of
    correctness on appellate review. The near inevitable result of error was a new
    trial. See e.g.
R. v. Riezebos
(1975), 26 C.C.C. (2d) 1 (Ont. C.A.).

[148]

The
    preoccupation of courts with the definition of corroboration under the
    accomplice rule derived from
R. v. Baskerville
, [1916] 2 K.B. 658.
Baskerville
eliminated evidence which strengthened the credibility of the accomplice, the
    real issue in the case, from the pool of potentially corroborative evidence
    that could be left for the jury to consider:
Vetrovec,

at pp. 824-825.

[149]

The decision in
Vetrovec
put paid to the blind and empty formalism of the accomplice rule. In place of
    the fixed and invariable accomplice rule, the
Vetrovec
court outlined
    a practice to be followed when a witnesss testimony is central to the Crowns
    case but may be suspect because the witness is of disreputable character or an
    accomplice. In such circumstances, common sense dictates that there must be
    some confirmatory evidence before the trier of fact relies on the testimony:
Vetrovec
,
    at p. 831

[150]

In its rejection
    of a special rule for accomplice testimony, the Vetrovec court also rejected
    the technical Baskerville interpretation of corroboration. In addition, the
    court jettisoned the trial judges obligation to exhaustively list every piece
    of evidence with corroborative potential. Instead, the jury was entrusted with
    the task of determining for itself whether any given piece of evidence had that
    potential. Instead, the court said at pp. 831-2:

There is no magic in the word corroboration, or indeed in any
    other comparable expression such as confirmation and support. The idea implied
    in those words may, however, in an appropriate case, be effectively and
    efficiently transmitted to the mind of the trier of fact. This may entail some
    illustration from the evidence of the particular case of the type of evidence,
    documentary or testimonial, which might be drawn upon by the juror in
    confirmation of the witness testimony or some important part thereof. I do not
    wish to be taken as saying that such illustration must be carried to
    exhaustion. However, there is, in some circumstances, particularly in lengthy
    trials, the need for helpful direction on the question of sifting the evidence
    where guilt or innocence might, and probably will turn on the acceptance or
    rejection, belief or disbelief, of the evidence of one or more witnesses.

[151]

Several brief
    points emerge from the tide of jurisprudence washed ashore from the wake of
Vetrovec
.

[152]

First, the
    extent to which a trial judge illustrates potentially confirmatory evidence is
    left largely to the discretion of the presiding judge. Sometimes more
    illustrations are provided. And other times fewer. Indeed, on some occasions
    when the record includes a surfeit of potentially confirmatory evidence,
    defence counsel prefers less rather than more, and perhaps even a diluted
Vetrovec
caution. And it is the cumulative effect of the potentially confirmatory
    evidence that jurors are to consider. This cumulative effect may exceed the sum
    of its individual parts:
Vetrovec
, at p. 833;
R. v. Kler
,
    2017 ONCA 64, 345 C.C.C (3d) 467, at para. 145.

[153]

Second, to be
    potentially confirmatory of a
Vetrovec
witness inculpatory testimony,
    independent evidence need
not
implicate the accused in the commission
    of the offence. It is sufficient if the evidence is capable of restoring the
    jurys faith in the relevant aspects of the
Vetrovec
witness account:
R. v. Kehler
, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 15-16;
R.
    v. MacIsaac
, 2017 ONCA 172,
347 C.C.C. (3d) 37,

at
    para. 38, leave to appeal refused, [2017] S.C.C.A. No. 152.

[154]

Third, neutral
    evidence, that is to say evidence that is equally consistent with the truth or
    falsity of the
Vetrovec
witness testimony, lacks confirmatory
    potential:
MacIsaac
, at para. 38;
R. v. McFarlane
, 2012 ONCA
    355, at para. 14.

The Principles Applied

[155]

As I will
    briefly explain, the combined effect of several factors persuades me that any
    error that may have occurred here caused no prejudice to the appellant.

[156]

First, this is
    not a case where each item of evidence presented by the trial judge as potentially
    confirmatory lacked such potential. The appellant acknowledges that the GSR and
    video surveillance evidence had confirmatory potential. As well, the video
    surveillance evidence could easily have been plumbed for its confirmatory
    potential much more than the passing reference made to it by the trial judge.
    This would not have helped the appellant.

[157]

Second, the
    evidence about which complaint is made was fairly put by the trial judge. The
    jury were expressly told that evidence with confirmatory potential was only
    relevant to assist their evaluation of the incriminatory aspects of McDermotts
    evidence, not its exculpatory features. And the jurors were told further that
    whether the evidence helped them in their decision was entirely up to them.

[158]

Third, neither
    counsel who appeared at trial for the appellant objected to this aspect of the
    charge to the jury. While failure to object is not dispositive, it tends to
    show that those best positioned to ensure that the appellants case was fairly
    put to the jury did not consider that what was said or left unsaid caused the
    appellant any prejudice.

[159]

Fourth, the nature
    and extent of the illustrations of potentially confirmatory evidence under
Vetrovec
are largely matters of judicial discretion entitled to deference here. These
    are not, as under the accomplice rule, determinative of the evidence upon which
    the jury may rely if they decide that confirmation of the
Vetrovec
witness evidence is desirable. The jury was free to consider other evidence as
    confirmatory. And it follows from the role of potentially confirmatory evidence
    under
Vetrovec
that errors in illustrations lack the impact and
    potential prejudice of errors in listing potentially corroborative evidence
    under the accomplice rule.

Ground #3: The Tailoring Evidence Ground

[160]

This ground of
    appeal involves a complaint about the trial Crowns cross-examination of the
    appellant and his references to the answers given in his closing address to the
    jury. The passages are brief and involve challenges to the appellants
    testimony in-chief explaining or responding to some inculpatory features of the
    case for the Crown.

The Impugned Cross-Examination

[161]

In a series of
    questions, the trial Crown challenged the appellants explanations for:

i.

the gunshot residue in the car he drove to and from the banquet hall;

ii.

the fact that he was carrying a loaded handgun when he arrived at the
    banquet hall;

iii.

the accuracy of his shooting despite his claim that he had not fired the
    gun on any earlier occasion;

iv.

the length of time that elapsed between his arrival at the place of the
    shooting and the killing of the deceased; and

v.

the fact that he sold his car after the shooting and prior to his
    arrest.

The relevant portions of the
    cross-examination are excerpted in Appendix A to these reasons.

[162]

The trial Crown
    also cross-examined the appellant about the absence of video surveillance
    coverage in the area where the shooting occurred:

Q. And youre also telling this jury that [Bakhtaryani] was
    crazy, hes around that corner, hes walking quickly at you when you have your
    .45 pointed at him from 22 feet away?

A. Sure, yes. I dont even have to tell them. They could see
    the video for itself. Thats why I know Gods with me on this one because I
    didnt even know it wouldve been  it wouldve been my word that they would
    have to believe but thank God theres video cameras for that. You could see how
     the kind of person he is just from watching the video.

Q. Theres no videos around that corner?

A. No, there isnt.

Q. Its only your word?

A. I wish there was. I wish there was.

Q. And these are all lies that youve told the jury to explain
    away the problems with the evidence, right?

A. Its not like that, sir.

The Closing Address

[163]

Early in his
    closing address to the jury, the trial Crown asked the jury to recall the
    submissions of defence counsel and the explanations provided by the appellant
    for various items of evidence introduced in the case for the Crown. After
    characterizing the defence case as one of two themes, the trial Crown
    continued:

The first theme is one of innocent explanations. Every time
    theres a negative piece of evidence against the accused, there is an innocent
    explanation as to why that piece of evidence exists. The gunshot residue got
    there when I cleaned out my car. The reason that I didnt immediately get into
    my car is because it wasnt where I thought it was. Ill get into more specific
    examples of this as I go on, but for now please remember innocent explanations
    and how many innocent explanations will be offered to you before you ask
    yourself how can anyone be this unlucky versus these are just lies. The second
    theme is anything is possible. Is it possible that you didnt see what you
    thought you saw and its possible you didnt hear what you thought you heard.
    And the last point I want to make before I get into all this evidence is do not
    believe Mr. Mohamad. He is a liar and he is completely lying about
    self-defence. He is an accomplished actor who will say anything to convince
    anyone of his innocence. Just like he swore to God with Officer Goetz and
    became angry at the suggestion he had anything to do with the shooting. When
    you look at that video of his statement see how convincing he is. And its all
    lies, just like he said in his testimony to you, I swear to God I didnt mean
    to kill him. I swear on everything I love I didnt shoot from the car. He was
    acting for Detective Goetz and hes acting for you when he testified.

The Ruling of the Trial Judge

[164]

Defence counsel
    objected to some aspects of the trial Crowns cross-examination of the
    appellant. Counsel pointed out that the GSR evidence was equivocal, essentially
    neutral, not negative evidence as the Crown had characterized it. Counsel
    sought an instruction from the trial judge reminding the jury that counsels
    questions were not evidence, and that only the witness answers were evidence.
    The trial judge gave this instruction to the jury.

[165]

Defence counsel
    added that the appellant said nothing about GSR residue in his evidence
    in-chief. The Crowns cross-examination, counsel continued, implied that the
    appellant had learned about this feature of the Crowns case from disclosure
    and that the jury should draw an adverse inference that the appellant had concocted
    an innocent explanation after so learning.

[166]

The trial judge
    did not consider the cross-examination unfair or improper. He reasoned that it
    was necessary for the Crown to confront the appellant on these issues to comply
    with the rule in
Browne v. Dunn
(1894), 6 R. 67 (U.K. H.L.) if the Crown
    proposed to make any reference to it in his closing address to the jury. In the
    trial judges view what occurred was faithful to the principles expressed in
R.
    v. Cavan
(1999), 139 C.C.C. (3d) 449 (Ont. C.A.) about the permissible
    scope of Crown cross-examination.

The Arguments on Appeal

[167]

The appellant
    says that both the cross-examination and the trial Crowns reference to the
    substance of this evidence in his closing address were improper.

[168]

According to the
    appellant, the cross-examination and closing address were improper in two
    respects. Each breached the prohibition against the Crown alleging that an
    accused tailored his evidence to fit the Crown disclosure or the evidence
    adduced at trial. While this prohibition is subject to limited exceptions, none
    of those exceptions are at work here. In addition, both were improper because
    each exacted an evidentiary price or imposed an evidentiary penalty from the
    exercise of a constitutional right  an accuseds right to disclosure and to be
    present at his or her trial.

[169]

The appellant
    adds that both the cross-examination and the closing address reference taints
    the jurys view of the ethics of defence counsel, who put a series of
    exculpatory hypotheticals to the expert witness on GSR residue consistent with
    the appellants explanation about how the residue ended up in his vehicle.

[170]

The respondent
    rejects any suggestion of impropriety in either the cross-examination of the
    appellant or the closing address of the Crown. In any event, the respondent
    argues, any impropriety that may have occurred did not render the appellants
    trial unfair or cause a miscarriage of justice.

[171]

The respondent
    begins with a reminder that the test we should apply in our assessment of this
    ground of appeal should focus less on the cause  whether the cross-examination
    or submission was wrong or improper  and more on the effect. The respondent
    invites us to consider whether singly or in combination what occurred resulted
    in a miscarriage of justice by rendering the appellants trial unfair, or by
    otherwise bringing the administration of justice into disrepute.

[172]

The respondent
    says that it is critical to consider not only the context in which the
    questions were asked in cross-examination, but also the role of Crown counsel
    in the adversary process. After all, Crown counsel is an advocate, who is
    entitled, if not required, to advance the position of the Crown forcefully and
    effectively.

[173]

An assessment of
    context involves consideration of many factors. The nature of the defence
    advanced. The extent to which the remarks or cross-examination relate to
    matters central to the outcome of proceedings. The position of defence counsel,
    including the fact and nature of any objection raised by counsel. The ameliorating
    effect of any instructions from the trial judge. The strength of the case for
    the Crown. And whether the balance of the cross-examination was fair. This
    assessment must also take into account and accord deference to the trial
    judges evaluation of the situation, especially his or her appraisal of the
    extent of the impact on trial fairness and the nature of the remedy considered
    appropriate.

[174]

The respondent
    points out that nowhere did the Crown expressly or by necessary implication
    suggest that the appellant had tailored his evidence as a result of having
    received disclosure from the Crown prior to trial or of having been present
    throughout his trial. The Crown was entitled to challenge, and to vigorously
    challenge, the appellants story. To suggest that his explanations were
    implausible. And that they were invented. Indeed, it was necessary for Crown
    counsel to do so to be compliant with the rule of fairness in
Browne v. Dunn
if the Crown sought to make anything of it in his closing address.

[175]

In the alternative,
    the respondent argues that any transgressions fell close to the line of
    propriety, and even taken cumulatively, did not render the appellants trial
    unfair or cause a miscarriage of justice.

The Governing Principles

[176]

Several basic
    principles impose limitations on the scope of cross-examination of witnesses in
    a criminal trial.

[177]

First, the law
    imposes well-established limits on the scope of cross-examination in which
    Crown counsel is permitted to engage. Some apply to all witnesses. Others apply
    only where the witness is an accused:
R. v. R. (A.J.)
(1994), 20 O.R.
    (3d) 405, at  p. 412.

[178]

Second, Crown
    counsel is entitled and sometimes expected to conduct a vigorous
    cross-examination of an accused:
R. (A.J.)
, at para. 22.

[179]

Third, although
    isolated transgressions of the rules governing cross-examination of an accused
    by Crown counsel may be of little consequence, repeated improprieties are
    different. Serial infractions may become abusive and contribute to the danger
    of a miscarriage of justice:
R. (A.J.)
, at para. 23.

[180]

Fourth, to
    determine on which side of the line an allegedly improper cross-examination
    falls, a reviewing court should keep in mind that every improper cross-examination
    does not require appellate reversal. Each case is different. A function of its
    own circumstances. And so it is that each case demands a case-specific
    analysis. What may render one trial unfair may not have the same effect in
    another case.

[181]

The
    case-specific analysis requires consideration of the alleged improprieties in
    the context of the entire cross-examination, indeed in the environment of the
    entire trial. We should consider whether the allegedly improper
    cross-examination resulted in a jury hearing or seeing evidence that they
    should not have heard or seen, for example evidence of extrinsic misconduct. We
    should consider whether the impugned cross-examination was brief or protracted
    and whether it attracted objection from defence counsel or remained
    unchallenged. Any ameliorating steps taken by the trial judge, for example
    curative instructions specific to the impropriety claimed or those of a more
    general nature, are also important antidotes to any claim of prejudice:
R.
    v. E. (F.E.)
, 2011 ONCA 783, 108 O.R. (3d) 337, at paras. 76-78;
R. v.
    Daly
(1992), 57 O.A.C. 70 (C.A.).

[182]

It is
    well-settled that an accused is not to be cross-examined by the Crown about his
    receipt of or access to disclosure of the case for the Crown or her presence at
    trial in order to suggest that his or her evidence has been tailored, although
    this general rule is not without exception:
E. (F.E.)
, at paras. 71-72;
R.
    v. John
, 2016 ONCA 615,

133 O.R. (3d) 360, at paras.
    60-61, leave to appeal refused, [2017] S.C.C.A. No. 101;
R. v. Jorgge
,
    2013 ONCA 485, at paras. 12-17;
R. v. White
(1999), 42 O.R. (3d) 760 (C.A.),
    at pp. 767-68.

[183]

Whether
    cross-examination of an accused about his or her access to and review of Crown
    disclosure is improper falls to be decided according to the circumstances of
    each case:
Cavan
, at para. 41.

[184]

A final point
    concerns appellate review of decisions concerning the application of the rule
    in
Browne v. Dunn
. Appellate courts accord substantial deference to
    assessments made by trial judges on the application of the rule, especially
    with respect to the impact of any breach and the choice of remedy. After all,
    the rule is one of fairness, hence the preferred position of the trial judge to
    gauge the impact of any breach and the ameliorative response best suited to the
    case.

The Principles Applied

[185]

I would not give
    effect to this ground of appeal. My reasons are brief.

[186]

To begin, at no
    time did the trial Crown expressly or by necessary implication allege that the
    appellant tailored his evidence on the basis of his access to or review of
    Crown disclosure or his presence at trial. It necessarily follows from the
    absence of any such suggestion in cross-examination and closing argument that
    the Crown did not attempt in either way to exact an evidentiary toll from the
    appellants right to pre-trial silence or disclosure, or his statutory and
    constitutional right to be present at his trial. As a result, this aspect of
    the appellants complaint falls away.

[187]

Second, the
    impugned questions were part of a series directed to show a series of
    implausibilities in the appellants account of relevant events beginning with
    his armed attendance at a  stag party and culminating with the shooting death
    of the deceased. The Crown was entitled to challenge the appellants account in
    an effort to negate his claim of self-defence.

[188]

Third, the trial
    judges measure of the situation is entitled to deference. He was there. We
    were not. He was better able to take the temperature of the trial than are we
    at one remove.

[189]

Finally,
    although the trial judge did not consider it essential to a fair trial to give
    a more specific instruction, he acceded to the only remedial request of defence
    counsel when he instructed the jury that it was the witness answers to the
    questions that constituted the evidence in the case, not the questions of the counsel.

[190]

This ground of
    appeal fails.

Ground #4: The Instructions on Self-Defence

[191]

The principal
    defence advanced at trial, supported by the appellants testimony and the
    expert opinion evidence of Steven Summerville about the use of lethal force,
    was self-defence. The parties agreed that although the killing took place on
    January 21, 2011, the governing statutory scheme for self-defence were the
    provisions in s. 34 of the
Criminal Code
that had come into force on
    March 11, 2013, about two and one-half months before the appellants trial (the
    current s. 34).. At the time of the shooting, different provisions (the
    former s. 34) were in force.

[192]

On June 8, 2015,
    about two years after the jury rendered its verdict in this case, this court
    decided that the current s. 34 did not have retrospective effect and thus
    applied only to offences committed on or after March 11, 2013. In the result,
    contrary to the position of trial counsel on both sides and the trial judge,
    the appellants killing of the deceased could only be justified under the
    former s. 34, not under the current s. 34.

[193]

In this court,
    contrary to the position advanced by his counsel at trial, the appellant says
    that it was an error to leave self-defence under the current s. 34, rather than
    under the former s. 34, and that the error requires a new trial.

The Pre-Charge Conference

[194]

Among the issues
    canvassed during the pre-charge conference was whether the appellant was under
    any duty to retreat before he fired the fatal shots, and if so, whether his
    failure to do so affected the availability of self-defence.

[195]

Defence counsel
    contended that for self-defence purposes, the confrontation between the
    appellant and the deceased began in the laneway, when the deceased said
    something that caused the appellant to turn around suddenly. When this
    occurred, the deceased was armed with a knife and was only 22 feet away from
    the appellant. At that point, according to the use of force expert, shooting
    was the only available option, not retreat. Under the current s. 34, the
    availability of retreat is a factor for the trier of fact to consider in
    assessing the reasonableness of an accuseds response. The current s. 34 does
    not eliminate the duty to retreat, nor does the section make the defence unavailable
    when an accused fails to retreat.

[196]

The trial Crown
    did not contest much of what defence counsel said about retreat and its
    relevance to self-defence under the current s. 34. However, the Crown submitted
    that the appellants duty to retreat started at the door to the banquet hall,
    not when the appellant turned around in response to something the deceased said
    to him in the laneway. It was at the door to the banquet hall where the
    appellant had to consider his options, among them, retreat.

The Closing Address of the Crown

[197]

In his closing
    address to the jury, the trial Crown focused on the appellants
purpose
in shooting the deceased and on the reasonableness of his response to the
    deceaseds conduct. The Crown contended that the purpose of the shooting was
    not to protect or defend himself as the current s. 34(1) requires, but to lure
    the deceased outside to a darkened area, there to shoot him with a gun that the
    appellant had brought with him minutes before. The Crown also invited the jury
    to find that shooting the deceased was not a reasonable response to unforeseen
    events but the product of forethought on the appellants part.

The Charge to the Jury

[198]

The trial judge
    separated out the three constituent elements of the current s. 34(1), which can
    be summarized as:

·

belief;

·

purpose; and

·

reasonable response.

He converted each into a
    question for the jury to consider. He emphasized the absence of a burden on the
    appellant and the imposition of a burden of disproof on the Crown by prefacing
    each question with the phrase [h]as the Crown proven beyond a reasonable doubt,
    followed by a statement of the relevant essential element.

[199]

In connection
    with the third element, which I have summarized as reasonable response, the
    trial judge listed the factors set out in current s. 34(2) and continued:

As you can see from this list of factors, in particular, item
    (ii), an individual may not be entitled to rely on self-defence if there are
    other means available to respond to the threat. This does not mean that that
    person is not entitled to stand their ground, that is, they do not have to
    retreat in the early stages of a confrontation. However, as that confrontation
    develops and the individual decides to respond to the threat by the use of
    lethal force, they can only do so if there are no other viable options
    available to them such as flight or use of a safe haven. Before they can resort
    to the use of lethal force, they have to consider other available options that
    do not threaten the life of their assailant. Self-defence is never a licence to
    indiscriminately kill. On the other hand, an individual cannot weigh to a
    nicety the exact measure of the defensive action nor to reflect upon the risk
    of deadly consequences which might result from taking justifiable defensive
    action. As one giant of American judicial history once said, It is
    unreasonable to expect calm reflection in the face of an uplifted knife. There
    are other definition of self-defence that might apply in other jurisdictions.
    This is the definition that applies in this country and you are guided by it in
    your deliberations.

[200]

The trial judge
    then reminded the jury about the positions counsel had advanced in argument on
    the issue of self-defence before concluding his instructions on the issue by a
    repetition of the questions reflecting the essential elements of the
    justification and the findings available to the jury on each question.

The Arguments on Appeal

[201]

In this court,
    the parties have the benefit of the reasons in
R. v. Bengy
, 2015 ONCA
    397, 325 C.C.C. (3d) 22, which was not available to the parties or to the trial
    judge at the time of trial. They now agree that the trial judge should have
    instructed the jury on the former s. 34 rather than the current s. 34. Where
    the parties differ is on the effect of the error on the reliability of the
    verdict rendered at trial.

[202]

The appellant
    says that, in this case, leaving the issue of self-defence to be determined in
    accordance with the current s. 34 was prejudicial to the appellant and
    compromised the reliability of the verdict rendered at trial. The prejudice
    arose because the current s. 34, unlike its predecessor, requires the jury to
    consider not only the availability of other means of response, but also the
    nature and proportionality of that response to the deceaseds threat of force.

[203]

Here, the
    appellant points out, the Crown advanced the availability of other means of
    response prior to the fatal altercation, such as walking away or leaving the
    banquet hall. Under the former s. 34(2), the possibility of retreat was only
    relevant in an assessment of an accuseds apprehension or belief after the
    assault began. The instruction on the current s. 34 left it open to the jury to
    accept the submission of the Crown that it was unreasonable for the appellant
    not to pursue other means inside the banquet hall before the deceased pursued
    the appellant outside the building and before the appellant knew that the
    deceased was armed. This instruction rendered it unlikely that the jury would
    find or be left in a reasonable doubt by the possibility that the shooting of
    the deceased was reasonable in the circumstances.

[204]

Under the former
    s. 34(2), the appellant continues, there was no requirement that an accuseds
    responsive force be proportionate to the deceaseds unlawful assault. However,
    the use of disproportionate force could negate the reasonable response
    requirement under the current s. 34(1)(c).

[205]

The respondent
    takes the position that the admitted error in leaving the justification of
    self-defence to be determined in accordance with the wrong statutory provision
    caused the appellant no substantial wrong and occasioned no miscarriage of
    justice.

[206]

The respondent
    begins with the observation that the instructions given were precisely what the
    appellant sought to have the jury assess his claim of self-defence. The defence
    was grounded on the appellants own testimony and the expert opinion evidence
    of Steven Summerville, which focused on the issue of reasonable response as
    framed by the current s. 34(1)(c) and informed by the factors listed in the
    current s. 34(2).

[207]

The respondent
    acknowledges that the mere fact that the appellant got the instruction on
    self-defence that he sought does not erase or diminish the error in giving it.
    But, the respondent continues, the authorities following
Bengy
make it
    clear that the impact of the error is not a constant. Rather, what is required
    of a reviewing court is a case-specific examination to determine whether the
    error has compromised the reliability of the verdict and thus resulted in a
    substantial wrong or a miscarriage of justice. Among other reasons, this
    analysis is required because the current s. 34 in some respects is more
    favourable to an accused who raises self-defence, but in others, less
    favourable than the former s. 34(2).

[208]

In this case,
    the respondent says, the instructions on the current s. 34 were the functional
    equivalent of the instructions the jury would have received had they been
    instructed under the former s. 34(2). Nothing turned on the possibility of a
    retreat or proportionality. The essential issue for the jury was which version
    of the fatal altercation to accept  that of the appellant or that of Sean
    McDermott. If the appellants version was true, no retreat was possible. Lethal
    force was not only a proportional response to the equivalent threat posed by
    the deceased, but the only response reasonably available to him.

[209]

The respondent
    points out that under the current and former s. 34, neither retreat nor
    proportionality bar the availability of self-defence. Each is a factor to determine
    whether an accuseds belief, apprehension or conduct was reasonable. The trial
    judge made it clear that in the early stages of a confrontation a person need
    not retreat but must consider alternatives, including escape, when lethal force
    is used.

[210]

In the end, the
    respondent concludes, the Crowns position did not focus upon either the duty
    to retreat or the proportionality of the appellants response. The Crowns
    position was straightforward: the events described by the appellant simply did
    not occur. This was not self-defence; rather, a planned and deliberate killing.

The Governing Principles

[211]

To determine
    whether the effect of the instructions given on the current s. 34 caused a
    substantial wrong or miscarriage of justice to the appellant, it is helpful to
    consider the essential elements of self-defence under the current and former
    provisions. In particular, we must consider the relationship between retreat, the
    availability of alternative means, and the requirement of proportionality on
    the one hand and the availability of the justification on the other.

The Statutory Provisions

[212]

The current s.
    34(1) is in these terms:

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable
    grounds that force is being used against them or another person or that a
    threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for
    the purpose of defending or protecting themselves or the other person from that
    use or threat of force; and

(c) the act committed is reasonable in the circumstances.

[213]

Section 34(1)
    consists of three elements, which may be briefly described as:

·

belief (s. 34(1)(a));

·

purpose (s. 34(1)(b)); and

·

reasonable response (s. 34(1)(c)).

The first two elements involve
    an accuseds state of mind, the third, an accuseds conduct.

[214]

Section 34(1)(a)
    requires that an accused have a reasonable belief that force is being used or
    threatened against him or her or another person. The focus of this element is
    on the accuseds perception, not the actual circumstances. As a matter of fact,
    there need not be actual force or even a threat of force. However, as a matter
    of evidence, the existence of actual force or threat of force would assist in
    satisfying at least the objective component of this essential element.

[215]

The belief
    component in the current s. 34(1)(a) has both objective and subjective
    elements. An accused who relies on the justification afforded by the current s.
    34(1) must actually believe that force is being used or threatened against him
    or her. And this belief must be reasonable in all the circumstances.

[216]

The second
    element for which s. 34(1)(b) provides  purpose  also has to do with an
    accuseds state of mind. But this element is purely subjective. The responsive
    act or conduct must be for the purpose of defending or protecting the accused
    or another person against whom force is used or threatened.

[217]

The final
    element  reasonable response  relates to an accuseds conduct, i.e., what he
    or she does for the purpose of defence or protection. Section 34(1)(c) requires
    that the accuseds conduct be reasonable in all the circumstances.

[218]

The
    determination of the reasonableness of an accuseds response is informed by the
    factors set out in s. 34(2). The catalogue of factors inform but are not
    dispositive of the reasonable response element of the justification in s. 34(1)(c).
    Among the factors are:

i.

the nature of the original force or threat;

ii.

the extent to which the actual or threatened use of force was imminent;

iii.

the availability of means other than those used by the accused to
    respond to the potential use of force; and

iv.

the nature and proportionality of the accuseds actual response to the
    actual use or threat of force.

[219]

The former s.
    34(2) provided:

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.

[220]

Under the former
    s. 34(2), self-defence was available to an accused as a justification for
    killing another person provided the trier of fact had a reasonable doubt about
    each of its constituent elements. Two of those elements relate to
conduct
 the unlawful assault of the accused by another and the accuseds use of
    responsive force. The other two elements expressed in ss. 34(2)(a) and (b) have
    to do with the accuseds state of mind  a reasonable apprehension of death or
    grievous bodily harm from the unlawful assault and a reasonable belief that a
    responsive force is required for self-preservation.

[221]

The essential
    elements of self-defence under the former s. 34(2) have been summarized as:

i.

the existence of an unlawful assault;

ii.

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

iii.

a reasonable belief of the impossibility of self-preservation except by
    killing or grievously injuring the adversary.

See,
R. v. Pétel,
[1994]
    1 S.C.R. 3, at p. 12;
R. v. Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3, at
    para. 93;
R. v. M. (M.A.)
, [1998] 1 S.C.R. 123, at para. 18.

[222]

A literal
    reading of the opening words of s. 34(2)  everyone who is unlawfully
    assaulted  would seem to require an actual assault of the accused, without
    provocation, as a condition precedent to engage the justification. But the
    authorities have made it clear that the provision tolerates mistakes on the
    part of the accused about an actual assault. And so it is that the question for
    the trier of fact on this element is not Was the accused unlawfully
    assaulted? but rather Did the accused reasonably believe, in the
    circumstances, that she was being unlawfully assaulted?:
Cinous
, at
    para. 107;
Pétel
, at p. 13. This element, like the other elements, has
    both a subjective and an objective component. The accuseds perception constitutes
    the subjective component. But that perception must be reasonable, hence the
    objective component:
Cinous
, at para. 94.

[223]

The inquiry in
    connection with the final  element in the former s. 34(2)(b) focused
not
on whether the accuseds responsive force was actually the only means of
    self-preservation, but whether the accused believed that this was so, and whether
    the accuseds belief was reasonable:
Cinous
, at para. 121. Said in
    another way, the focus under former s. 34(2)(b) was on the reasonableness of
    the accuseds actual belief, not on the reasonableness of his conduct in
    killing his adversary:
Cinous
, at para. 123. In light of its potential
    applicability to cases of intentional killing, the former s. 34(2) was intended
    to cover situations of last resort:
Cinous
, at para. 124.

[224]

Under the former
    s. 34(2), the possibility or availability of retreat was not an element of the
    justification. But it was a relevant factor for the trier of fact to consider
    on the issues of the accuseds reasonable apprehension of death or grievous
    bodily harm and his reasonable belief in the availability of other means of
    self-preservation:
R. v. Cain
, 2011 ONCA 298, 278 C.C.C. (3d) 228, at
    para. 9. In addition, the issue of retreat was also relevant in the assessment
    of any argument by the Crown that the accused had come to settle a score and
    was not acting in self-defence:
Cain
, at para. 10.

[225]

The former s.
    34(2) contained no requirement that the responsive force used by the accused be
    proportionate to the original assault or that it not exceed what was necessary,
    provided the other conditions were met:
R. v. Bogue
(1976), 13 O.R. (2d)
    272 (C.A.) at pp. 276, 280;
R. v. Ward
(1978), 4 C.R. (3d) 190 (Ont.
    C.A.), at p. 192.

Reviewing Erroneous Instructions

[226]

Something should
    be said about how we should assess the impact or effect of erroneously leaving
    an inapplicable statutory provision for the jury to determine whether the
    appellants killing of the deceased was justified in self-defence.

[227]

With any
    defence, justification, or excuse advanced in answer to a charge of crime, an
    accused is not entitled to its consideration by the trier of fact unless the
    evidence adduced at trial affords an air of reality for that defence,
    justification, or excuse:
Cinous
, at paras. 50-52;
R. v. Grant
,
    2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 53. Where there is no air of
    reality to a defence, justification or excuse, it should not be put to the
    jury:
Cinous
, at para. 51.

[228]

In a case such
    as this, where the error alleged is that the trial judge failed to instruct the
    jury on the justification of self-defence under the former s. 34(2), the first
    question is whether the evidence adduced at trial satisfied the air of reality
    threshold in connection with each requirement, both subjective and objective,
    of each essential element of that justification.

[229]

If the air of
    reality standard is met, it becomes necessary to conduct a case-specific
    inquiry to determine whether the instructions provided under the current s. 34
    deprived the appellant of a benefit of some element of the defence available to
    him under the former s. 34(2) or imported some pro conviction factors which
    would not have been applicable under the former s. 34(2):
R. v. Phillips
,
    2017 ONCA 752, 355 C.C.C. (3d) 141,at para. 74.

[230]

This case-specific
    inquiry should begin by identifying at the outset the essence of the
    self-defence claim to determine whether the instructions given under the current
    s. 34 brought home to the jury the key elements of the former s. 34(2) in light
    of the evidence adduced at trial:
Phillips
, at para. 75. See also,
R.
    v. Pintar
(1996), 30 O.R. (3d) 483 (C.A.), at p. 494.

[231]

In connection
    with the former s. 34(2), we must keep in mind that all three elements of the
    justification include not only subjective features, but also objective
    components:
Cinous
, at para. 94. In cases in which the state of an
    accuseds mind is to be determined in whole or in part by circumstantial
    evidence, an analysis of what a reasonable person would think or do in the same
    circumstances is a relevant factor ripe for consideration in assessing an
    accuseds state of mind. It follows that it is not wrong for a trier of fact to
    take into account conclusions about the objective elements in determining the
    subjective elements:
R. v. LaKing
(2004), 185 C.C.C. (3d) 524 (Ont.
    C.A.), at para. 61.

[232]

Reasonableness
    is inherently incapable of proof by direct evidence. Thus, the testimony of an
    accused about his or her perceptions does not necessarily constitute evidence
    reasonably capable of supporting the conclusion that the accuseds perception,
    belief, or apprehension was reasonable in the circumstances:
Cinous
, at
    paras. 95-96.

[233]

A final point
    about the former s. 34(2). The section did not require an accused to rule out courses
    of action other than killing. What it did require was that the accused believe
    on reasonable grounds that there was no alternative course of action open to
    him at that time. The accused must have reasonably thought he was required to
    kill the deceased in order to preserve himself from death or grievous bodily
    harm:
Cinous
, at para. 123.

The Principles Applied

[234]

For reasons that
    I will develop, I would not give effect to this ground of appeal.

[235]

I begin with the
    obvious: the trial judge erred in instructing the jury to evaluate the
    appellants claim that he acted in lawful self-defence in accordance with the
    current s. 34 of the
Criminal Code
. The claim should have been
    determined on the basis of the former s. 34(2). But as we have seen in the
    decisions of this court in
Grant
and in
Phillips
, our task in
    connection with this ground of appeal does not end with the mere identification
    of the error. We must go on, as in other instances of legal error, to assess
    the impact of that error in the circumstances of this case. Our inquiry is case-specific,
    not at some level of abstraction removed from the evidence adduced and the
    positions advanced at trial.

[236]

As mentioned,
    the first question in this analysis is whether the evidence adduced at trial
    satisfied the air of reality threshold to warrant the submission of the former
    s. 34(2) to the jury. For if the evidence falls short of that standard, the
    appellant is not entitled to have his claim of self-defence considered by the
    jury in accordance with that provision. And if that is so, its omission from
    the charge would not cause the appellant any substantial wrong or miscarriage
    of justice. In this case, however, the respondent has not challenged the trial
    judges determination on air of reality. We therefore assume that the threshold
    is met.

[237]

Even if the
    evidence adduced at trial puts the former s. 34(2) in play, it does not
    necessarily follow that the error of law in leaving the current s. 34 as the
    basis upon which to assess the claim of self-defence caused the appellant a
    substantial wrong or miscarriage of justice. Again, what is required is a
    case-specific inquiry to determine, in
this
case, on
this
evidence and on the basis of the positions advanced by counsel at
this
trial, whether a substantial wrong or miscarriage of justice occurred because the
    current s. 34 was left rather than the former s. 34(2).

[238]

As I understand
    the appellants complaint, it fastens upon two aspects of the current s. 34(1)
    which he says do not apply under the former s. 34(2):the relevance of failure
    to retreat and the requirement of proportionate force. The appellant argues
    that the introduction of these considerations, which would not have been in
    play under former s. 34(2), amounts to a fatal error.

[239]

The following
    factors satisfy me that this ground of appeal is unavailing.

[240]

First, the
    nature of the controversy at trial.

[241]

The issue that
    divided the parties at trial was the truthfulness of the appellants account
    about how events actually unfolded in the darkened laneway. This was the core
    question for the jury to decide. The appellant claimed the deceased pursued him
    aggressively. When he arrived within feet of the appellant, the deceased
    brandished a knife. That he was left with no other option than shooting the
    deceased was supported by the evidence of Steven Summerville.

[242]

The Crown
    alleged that the appellants claim of self-defence was woven of whole cloth.
    What happened was that the appellant lured the deceased to a darkened part of
    the laneway and there shot him to death as he had planned to do. This was no
    self-defence; rather, a simple execution.

[243]

The resolution
    of this core question did not require any determination of retreat, other
    available options, or proportionate force. And its resolution against the
    appellant left those issues behind.

[244]

Second, when the
    trial judges charge is read as a whole, the failure of the appellant to
    retreat was not left to the jury as something that disentitled him from relying
    on self-defence. In other words, the jury was not told that to succeed on the
    issue of self-defence the appellant was required to raise a reasonable doubt about
    the possibility of retreat.

[245]

Third, a failure
    to retreat and the availability of other alternatives would still have been
    left for the jurys consideration under the correct statutory provisions. The
    availability of other alternatives, such as retreat, are relevant factors for
    the trier of fact to consider under both the reasonable apprehension and
    reasonable belief issues in the former s. 34(2). More importantly, under both
    provisions, the possibility of retreat and the availability of alternative
    courses of action are simply factors to consider, not prerequisites for the
    justification.

[246]

Fourth, the
    relevance of excessiveness or disproportionality of the force used. The former
    s. 34(2), unlike the current s. 34(1)(c), contains no requirement that the
    defensive or protective conduct be reasonable in the circumstances. Under the
    current s. 34(1)(c), the nature and proportionality of the accuseds responsive
    conduct is neither more nor less than a factor, one of many, for the trier of
    fact to consider in assessing whether what the accused did was reasonable in the
    circumstances. But even under the former s. 34(2), disproportionate force was
    relevant to a determination of the states of mind described in ss. 34(2)(a) and
    (b).

[247]

Fifth, the
    significance of disproportionality to the self-defence claim at trial. In this
    case, disproportionality force was not the central focus of the Crowns
    submission that self-defence failed. The Crown did not take issue with the
    testimony of the use of force expert, Steven Summerville, that based on the
    circumstances described by the appellant, deadly force was the only viable
    response. What the Crown did challenge was the appellants claim that he acted
    in self-defence at all, not that self-defence was an unavailable defence
    because the appellant used disproportionate force.

[248]

Further, the
    authorities make it clear that self-defence is a justification of last resort:
Cinous
,
    at para. 124. It is also clear that each element of the justification for which
    the former s. 34(2) provided includes not only subjective components, but also
    objective considerations. Under the former s. 34(2), the jury would have had to
    accept that the appellant believed on
reasonable grounds
that his own
    safety and survival depended on killing the deceased at that moment. While the
    appellants testimony provided evidence about the subjective aspects of the former
    s. 34(2), it provided little if any support for the objective components.

[249]

As mentioned, I
    would reject this ground of appeal.

Ground #5: The Videotape Playback Request

[250]

The final ground
    of appeal against conviction relates to the trial judges response to a request
    by the deliberating jury to replay the videotaped interview of Sean McDermott.
    Some background is essential to an understanding of this ground of appeal and
    an assessment of its merits.

The Introduction of the Evidence at Trial

[251]

As we have seen
    earlier, the police interviewed Sean McDermott about his knowledge of the
    shooting death of the deceased. The third interview, conducted on January 23,
    was recorded on video as well as audio. A transcript was prepared. Evidence of
    the interview was admitted as part of the case for the Crown under the
    principled exception to the hearsay rule. The video of the interview and its transcript
    were filed as lettered exhibits, but assigned no exhibit number. Neither was
    sent to the jury room for the jurys use during their deliberations.

The Jury Instruction

[252]

In his charge,
    the trial judge instructed the jury that the evidence upon which they could
    rely included the testimony of witnesses and anything filed as an exhibit,
    which they could review as they saw fit in their jury room. The judge explained
    how the jury could use prior out-of-court statements of Sean McDermott in
    reaching their verdict. Among those out-of-court statements, the trial judge
    included the recorded interview of Sean McDermott on January 23, 2011, about
    which he gave more specific directions.

[253]

Among other
    instructions, the trial judge included in his charge a direction about the jurys
    ability to ask questions during their deliberations and the procedure the jury
    should follow when doing so.

The Jury Question

[254]

During their
    deliberations, the jury asked this question:

The jury would like to see the video of police interview of
    Sean McDermott (Exhibit E1-Video). In particular his statements on shooting
    once he is around the corner.

The Positions of the Parties

[255]

The trial judge
    solicited submissions from counsel about how best to respond to the jurys
    question. His initial concern was whether the entire video should be played or
    whether, as the jury asked, they should only see and hear the portion
    recounting events after the parties had gone around the corner.

[256]

The trial Crown
    suggested that the entire interview should be played. Defence counsel favoured playing
    only those portions recounting events after the parties rounded the corner of
    the banquet hall. He also asked that the playback be balanced by reading to
    the jury the cross-examination of McDermott on his statement at the preliminary
    inquiry. Later, defence counsel expanded his request to include McDermotts cross-examination
    at trial. The Crown then asked the trial judge to read the examination-in-chief
    of McDermott at the preliminary inquiry if he acceded to the defence request.

The Decision of the Trial Judge

[257]

The trial judge
    decided that the jury should see and hear the entire interview of Sean
    McDermott. He declined to accede to the defence request about adding the
    cross-examinations because he did not consider that doing so was responsive to
    the jurys question. The judge also expressed concern that if he permitted
    references to the cross-examinations of McDermott, achieving proper balance
    would also require references to the respective examinations-in-chief.

[258]

When the McDermott
    interview was played for the jury in open court, the jury was also supplied
    with the transcript to help follow along with what was said on the video. The
    trial judge instructed the jury on proper use of the transcript. He also
    reinstructed the jury on how they could use the interview as evidence and
    mentioned the inconsistencies between what McDermott said on the video and what
    he had said at the preliminary inquiry and at trial.

[259]

The jury reached
    a verdict the day following the replay of the video and the trial judges
    instructions that accompanied it.

The Arguments on Appeal

[260]

The appellant
    says that the trial judge erred in failing to give effect to the defence
    request. What occurred here is similar to cases where the jury asks to hear a portion
    of the witness examination-in-chief. In such a case, as we learned from
R.
    v. Olbey
, [1980] 1 S.C.R. 1008, even though the jury makes it clear that
    they wish to hear no more than what they specifically requested, the trial
    judge must remind them of any part of the witness testimony that weakens or
    qualifies the portion the jury seeks.

[261]

In this case,
    the appellant continues, the very fact of the request demonstrated the
    importance of this evidence for the jury in its deliberations. Sean McDermotts
    testimony was subject to a vigorous challenge by the defence at the preliminary
    hearing and at the trial. The trial judges failure to incorporate the defence
    request created a serious risk of undue emphasis on McDermotts statement and
    serious prejudice to the appellant because of a lack of balance.

[262]

The respondent
    begins with a submission that decisions about how to respond to an
    in-deliberation jury question involves the exercise of judicial discretion. And
    discretionary decisions, absent any error of law or of principle or any
    misapprehension of relevant evidence, are accorded substantial deference on
    appeal.  The respondent argues that the same deference should be accorded for the
    decision of a very experienced trial judge in the final moments of a lengthy
    and difficult trial.

[263]

In this case,
    the respondent says, giving effect to the appellants submissions would not
    only have been unresponsive to the jurys question, but it would have required
    a laborious presentation of evidence given at different stages of the process by
    McDermott, whose testimony kept changing. The approach adopted by the trial
    judge, especially when coupled with the legal instructions he provided,
    responded correctly, fairly, and in a timely way to the jurys question.

The Governing Principles

[264]

Several basic
    principles inform the decision on this issue.

[265]

First, the
    availability of exhibits for use by jurors in their deliberations.

[266]

As a general
    rule, anything that has evidentiary value may be used as evidence in a criminal
    trial. These things, when properly qualified for admission at trial, are
    assigned an exhibit number and filed as an exhibit. Exhibits are real evidence:
R. v. Taylor
, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 109. And as a
    general rule, apart from things that may be inherently dangerous or otherwise
    potentially harmful to jurors, these exhibits are sent to the jury room, along
    with instructions about their use and evidentiary value.

[267]

Exhibits, as
    real evidence, cannot be cross-examined. Leaving to one side exhibits which may
    form part of a formal admission under s. 655 of the
Criminal Code
,
    exhibits are introduced through the testimony of witnesses. Videotaped statements
    received under s. 715.1 of the
Criminal Code
are no exception. And
    witnesses can be cross-examined. This cross-examination might seek to diminish
    or qualify the probative value of the exhibit the witness has produced. Yet,
    only the exhibit, not the qualifying cross-examination, goes to the jury room:
Taylor
,
    at paras. 110-112.

[268]

Courts have
    recognized that trial judges have a discretion to determine whether things
    filed as exhibits should accompany the jury to the jury room during their deliberations.
    The guiding principle is one of trial fairness. The exercise of this discretion
    attracts appellate deference. Deference also applies to a review of any jury
    instructions on the handling of the evidence:
R. v. Archer
(2005), 202
    C.C.C. (3d) 60 (Ont. C.A.), at para. 78.

[269]

Second, the
    general principles governing responses to in-deliberation jury instructions. It
    is well-established that any question posed by a deliberating jury must be
    considered to be of significance. The answer provided must be correct,
    comprehensive, timely, accurate, and complete:
R. v. S. (W.D.)
, [1994] 3
    S.C.R. 521, at p. 528 The answers given are extremely important and carry an
    influence which far exceeds the instructions given in the main charge:
S.
    (W.D.)
, at pp. 530-1;
R. v. Naglik
, [1993] 3 S.C.R. 122, at p. 139.

[270]

Third, the
    principles applicable to in-deliberation questions seeking help about evidence.

[271]

As the trier of
    fact, the jury makes all factual determinations on the basis of the whole of
    the evidence admitted at trial and reasonable inferences drawn from that
    evidence. Sometimes, during deliberations, the jury requires a refresher about
    some aspect or feature of the evidence adduced at trial. Faithful to the
    instructions of the trial judge, the jury puts their request for help in a
    written question for the judge to answer. The question may seek help about the
    evidence on a particular issue, the testimony of a particular witness, the
    testimony of a particular witness on a specific issue, or some combination.

[272]

An important
    decision for judges to keep in mind when asked a question by a deliberating
    jury about some aspect of the evidence adduced at trial is
R v. Olbey
,
    [1980] 1 S.C.R. 1008.

[273]

In
Olbey
,
    the jury asked to rehear the salient points of the evidence of the appellant
    and another witness about Olbeys actions after a certain time. They indicated
    that they wanted to hear
all
of the witness evidence. After some of the
    examination-in-chief had been read back, the jury foreperson indicated that the
    jury did not wish to hear any more evidence read back. The rereading stopped.

[274]

On appeal, Olbey
    contended that the trial judge erred in allowing the jury to hear only part of
    the evidence requested without any repetition of the evidence adduced in
    cross-examination or other qualifying evidence. If that had happened, the
    argument continued, the evidence would have been put in its proper relation to
    the whole of the case and not isolated or accorded more emphasis than it should
    have received:
Olbey
, at pp. 1027-1028.

[275]

The court
    accepted as a general principle that where a jury requests a read back of a
    witnesss evidence, the trial judge should not permit the jury to hear only a
    part of that evidence. The jury should also hear those portions of the
    evidence, whether given during the examination in-chief or cross-examination,
    which weaken or qualify the part read. And this is so even if, as in
Olbey
,
    the jury indicates that it does not wish to hear any more of the witness
    evidence:
Olbey
, at pp. 1027-1028.

[276]

Where a trial
    judge errs in failing to read back all the relevant evidence, an appellate
    court is required to consider whether the error prejudiced the accused by
    improperly influencing the jurys verdict, thereby resulting in a substantial
    wrong or miscarriage of justice:
Olbey
, at p. 1029.

[277]

The
Olbey
court concluded that what had occurred at trial did not result in a substantial
    wrong or cause a miscarriage of justice. In reaching this conclusion, the court
    noted that there was no issue at Olbeys trial that he had killed the deceased.
    The only matter at issue was the legal nature of that killing, which fell to be
    determined by what the jury decided on the issues of self-defence and
    provocation. The witness whose evidence was partially read was not shaken in
    cross-examination. The jury did not want to hear any further testimony,
    including that of Olbey himself. The defence position had been fairly put. The
    court declined to interfere despite the error:
Olbey
, at pp. 1029-1030.

The Principles Applied

[278]

In combination,
    several factors persuade me that this ground of appeal fails.

[279]

First, judicial
    discretion. That in-deliberation jury questions require timely, correct,
    comprehensive, accurate and complete response is not open to debate. But, how
    the response is given is left largely to the discretion of the presiding judge.
    And that discretion, uncontaminated by errors of law or misapprehensions of
    fact and falling within a range of reasonable alternatives is entitled to
    deference on appellate review. The approach taken here was at once efficient
    and responsive to the jurys question.

[280]

The failure to
    accede to the proposal of defence counsel to balance the description of
    relevant events in McDermotts video statements by reference to portions of his
    cross-examination at the preliminary inquiry and trial was neither legally
    wrong nor an unreasonable response.

[281]

At bottom, what
    defence counsel had in mind as balancing the evidence was unclear. Sean
    McDermotts evidence was a work in progress, constantly evolving from the first
    interviews to the video statement; from the video statement to the preliminary
    inquiry; from the video statement and preliminary inquiry to the trial; and as
    the trial played out. The search for balance would involve a laborious,
    time-consuming exercise of finding and reading everything that McDermott said
    about what he saw around the corner. And there would be no reason to confine
    the balancing exercise to what McDermott had said in cross-examination. The
    jury was scarcely in need of reminder that the video interview of Sean
    McDermott on January 23, 2011 was only part of its evidence. His disavowal of
    it was on full display at trial. The jury was  witness to his several days of
    testimony. Of obfuscation and equivocation. The jury was also aware that
    McDermott was an unsavoury and very reluctant witness whose version of events
    evolved over time. The judge had expressly instructed them that it would be
    dangerous for them to reach a conclusion of guilt on the basis of his testimony
    absent confirmation by evidence from an independent source. And after the video
    was replayed for the jury, the trial judge repeated his earlier instructions
    about how the jury should assess McDermotts evidence, of which the video
    statement was but a part, including the need for caution in doing so.

[282]

Second, the
    significance of McDermotts evidence for the determination of the pivotal issue
    at trial. The appellant acknowledged shooting the deceased and causing his
    death. He said he shot and killed in self-defence. This justification was
    entirely dependent on the appellants own testimony, not that of Sean
    McDermott. It follows that the trial judges failure to provide the more
    expansive response to the jurys question as proposed by defence counsel did
    not prejudice the appellant, compromise his principal defence, or render his
    trial unfair.

[283]

Third, the
    evidence as a whole. The trial judge explicitly and repeatedly cautioned the
    jury about the need to consider the evidence as a whole and not to rely on
    McDermotts statement to the exclusion of the balance of the evidence.

[284]

There is no
    reason to think that the jurors did not adhere to this instruction in their
    deliberations, especially since they were reminded of it after the statement
    had been replayed in its entirety.

[285]

Further, it is worthy
    of repetition that the manner in which McDermotts evidence evolved and the
    instructions given to the jury about how to approach his evidence were
    prominent features of this trial. The jury was well aware that the video
    statement was but a part of McDermotts ever-evolving version of events. The
    failure to specifically rehearse excerpts from his testimony at the preliminary
    inquiry and trial to make that obvious point did not compromise the fairness of
    the trial or cause a miscarriage of justice.

[286]

I would not give
    effect to this ground of appeal.

[287]

For these reasons,
    I would dismiss the appeal from conviction.

THE APPEAL FROM SENTENCE

[288]

The appellant
    also seeks a reduction in the 16-year period of parole ineligibility fixed by
    the trial judge after the jury had found the appellant guilty of second-degree
    murder. He advances a single ground of appeal, which renders unnecessary any
    further review of the circumstances surrounding the death of the deceased.

[289]

A brief
    reference to some aspects of the sentencing proceedings is sufficient to place
    the claim of error in its proper setting.

The Jury Recommendation

[290]

In response to
    the statutory question asked of them by the trial judge, seven jurors made no
    recommendation about parole ineligibility, three recommended ten years, one
    recommended 15 years, and one recommended 25 years.

The Positions of the Parties

[291]

The trial Crown
    sought a parole ineligibility period of 18 years on the basis of several
    aggravating factors:

i.

the appellants criminal record of 21 convictions, including offences of
    violence, weapons offences, drug offences, and failures to comply with court
    orders;

ii.

the fact that the appellant was on probation and bound by two lifetime
    weapons prohibitions when he killed the deceased with an illegal handgun;

iii.

the appellants criminal lifestyle, including carrying a gun while
    trafficking in drugs;

iv.

the circumstances of the killing, including shooting the deceased as he
    lay wounded and helpless on the ground; and

v.

some elements of planning.

[292]

Defence counsel
    argued for an order fixing the period of parole ineligibility at the statutory
    minimum of ten years. Counsel emphasized:

i.

the fact that the overwhelming majority of jurors made no recommendation
    or recommended the ten-year minimum;

ii.

the mitigating effect of the conduct of the deceased, who took and
    maintained the initiative in the confrontation and an aggressive attitude and
    posture towards the appellant;

iii.

the absence of any evidence of planning;

iv.

the appellants acceptance of responsibility for his lifestyle and its
    consequences;

v.

the appellants expressions of remorse during his trial testimony and
    allocution before sentence was passed;

vi.

the appellants supportive family; and

vii.

the appellants rehabilitative prospects.

The Reasons for Sentence

[293]

In establishing
    the period of parole ineligibility at 16 years, the trial judge acknowledged
    that the appellant expressed remorse for his conduct and responded to an armed
    and persistent aggressor. The killing was intentional, but not planned or deliberate.
    But the appellants return to inflict the coup de grâce on a mortally wounded
    and helpless victim lying on the frozen ground, as confirmed by the GSR
    evidence and video surveillance, was a significantly aggravating factor. So was
    his later conduct in destroying evidence of his involvement in the killing. The
    trial judge accepted that the jury had found that the murder was
not
planned and deliberate.

The Arguments on Appeal

[294]

In his brief
    submissions on this issue, the appellant challenges the sentencing judges factual
    finding that the coup de grâce occurred. This finding, the appellant says,
    was unreasonable in light of the evidence adduced at trial and the appellants
    acquittal of planned and deliberate first degree murder. Neither alone nor in
    combination did the eye and ear witness evidence or the expert evidence of the
    pathologist or the GSR expert support the conclusion that the deceased was shot
    from the car while he was lying on the ground, mortally wounded. Consideration
    of this aggravating factor rendered the sentence demonstrably unfit.

[295]

The respondent
    rejects any suggestion that the coup de grâce finding was unreasonable or devoid
    of evidentiary support. Therefore, this conduct was properly considered as an
    aggravating circumstance. The trial judge was careful to properly confine the
    influence of his coup de grâce finding in his sentencing decision.

[296]

The respondent
    says that even if we were to accept that this finding was unsupported by the
    evidence or that it was not properly considered as an aggravating factor, the
    sentence imposed was nonetheless fit in light of the overwhelming aggravating
    factors and the predominance of the sentencing objectives of denunciation and
    deterrence. The respondent points out that the appellant was a career criminal,
    a drug dealer who carried a gun. Thirty-one years old at the time of the
    offence, the appellant was no callow youth. He had accumulated nearly two dozen
    convictions. Four offences of violence. And weapons offences. And drug
    offences. And breaches of court orders. He was on probation and in possession
    of a loaded illegal handgun in flagrant breach of not one but two lifetime
    weapons prohibitions. He brought a loaded handgun into a banquet hall. He
    destroyed evidence to avoid detection. Right or wrong about the coup de grâce,
    the sentence was fit.

The Governing Principles

[297]

The principles
    that govern appellate review of sentences imposed at trial are well-settled and
    in no need of elaboration. Suffice it to say that ultimately, except where a
    sentencing judge makes an error of law or an error in principle that has an
    impact on sentence, an appellate court may not vary a sentence unless it is
    demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    para. 11. Errors in principle, failures to consider a relevant factor, or the
    erroneous consideration of an aggravating or mitigating factor will justify
    appellate intervention only where it appears from the trial judges decision
    that such an error had an impact on the sentence:
Lacasse
, at para. 44.

The Principles Applied

[298]

As I will
    explain briefly, I would reject this ground of appeal and not interfere with
    the period of parole ineligibility fixed by the sentencing judge.

[299]

To begin, I am
    not persuaded that the coup de grâce finding made by the trial judge was
    devoid of evidentiary support. A passage to this effect appears in McDermotts
    video statement of January 23, 2011 which was admitted as evidence of the truth
    of its contents in accordance with the principled exception to the hearsay
    rule. It was confirmed to some extent by the expert evidence about the GSR
    found a month later on the appellants car and by the security video recording
    the movement of his vehicle and the reaction of several observers.

[300]

At all events,
    any error made by the sentencing judge in connection with the influence of the
    coup de grâce evidence on the sentencing decision did not result in the
    imposition of an unfit sentence. Aggravating factors were numerous. A 31
    year-old recidivist. A dedicated career criminal selling drugs as a business.
    On probation. Bound by two lifetime weapons prohibitions. Unlawfully carrying a
    loaded handgun. Previously convicted of offences of violence, weapons offences,
    and drug offences. Oblivious to court orders. Shooting his victim four times,
    including once in the back.

[301]

I would dismiss
    the appeal from sentence.

CONCLUSION

[302]

I would dismiss
    the appeals from conviction and sentence.

Released: GRS NOV 30 2018

David Watt J.A.

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

I agree. G.J.
    Epstein J.A.




APPENDIX A

Excerpt of the Appellants Cross-Examination

Q. It seems to me that every piece of
    negative evidence against you you create some sort of innocent explanation to
    deal with it. Youre saying that you know the GSR, your explanation for the
    gunshot residue in the car is is that you opened all the doors and searched
    that car, rear and passenger, so thatll provide an explanation for the gunshot
    residue, right?

A. Thats what happened, sir.

Q. Youre also saying about this drug
    deal and thats why you were carrying the gun, you have an innocent or semi-innocent
    explanation as to why youre carrying the gun that evening because you cant
    have the jury think you carry a gun all time, right?

A. I dont carry a gun all the time
    though.

Q. Youre also saying that youve
    never fired that gun before because to do that would be bad for  for you in
    front of the jury, right, you dont want them to know you that youve practiced
    with it, you know how to use it, right?

A. No, if Ive fired it I wouldve
    said I fired. I dont see whats the point. Ive never fired it.

Q. But in a highly volatile
    situation, while youre panicking and frozen, you manage to draw your gun, rack
    it, fire four shots from a gun youve never fired before and hit someone four
    times?

A. Yes, sir, thats what happened.

Q. Also this 10-second delay, the
    fact that youre around the corner 10 seconds before Arash gets around theres
    a problem for you. So you have to come up with when you get around there you
    think your car is somewhere else. You also come up with this fact that you are
    walking slowly that its.

A. Im not walking slowly. I was
    walking normally.

Q. Well, no, you said it was
    slippery.

A. Yeah, it was slippery.

Q. You said it was slippery. You had
    dress shoes on.

A. Yes, I did.

Q. So youre walking slowly. Youre
    not walking normally?

A. Im not walking slowly. Im
    walking  Im actually walking faster than normal.

Q. Well, you just said this morning.

A. No, no, no.

Q. That the reason that you slow down
    is because you were wearing dress shoes and its slippery?

A. Yes.

Q. Now youre saying you were walking
    normally and you didnt slow down?

A. I was walking normally. I never 
    I dont think I  if I did say normal  I was walking slowly then I misunderstood
    your question or I answered it wrong then. I was never walking slowly.

Q. And so you deal with this problem
    of, you know, being around his corner is is that youve underestimated where
    your car is, right?

A. Sure.

Q. Even though youve only left it three
    minutes ago and theres $27,000 in it?

A. The $27,000  I dont even know
    why you mention that because at the time my mind is not thinking about my money
    right now. Im just trying to get to my car, sir.

Q. You also have this explanation
    that you planned on selling the car prior to this incident, right, because you
    dont want the jury.

A. I was with  sorry, I was with
    Musi a month or so before that  Musafa and he  me and him went downtown in
    the Honda Accord and he really liked the car and he was like Is this your
    car? And Im like its one of my dads cars that he sells. Im using it for
    now. And he  please  said, Please sell it to me. Please sell it to me. I
    want this car. I really like this car. And I was, like, You know what Im
    just driving it around for now. Ill  Ill make sure, you know, it gets to you
    once Im sick of driving this. Pretty much we have this conversation a month
    before this incident.





[1]
The appellant had initially raised an additional ground of appeal relating to
    allegedly inattentive jurors in his factum, but he abandoned it at the hearing.


