



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2020 ONCA 462

DATE: 20200716

DOCKET:
    C64901

Doherty, MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shaune Brown

Appellant

Alexander Ostroff, for the appellant

Elise Nakelsky, for the respondent

Heard: July 3, 2020 by
    Videoconference

On appeal from a conviction on a charge
    of second-degree murder, returned on February 2, 2017 by a jury presided over
    by Justice B.A. Glass of the Superior Court of Justice, and an appeal from the
    sentence imposed on March 2, 2017 and reported at 2017 ONSC 1441.

Doherty J.A.:

A.

overview

[1]

On the afternoon of August 30, 2012, the
    appellant repeatedly stabbed Cory Fleetwood at Mr. Fleetwoods home in
    Peterborough. Mr. Fleetwood had invited the appellant to come from Toronto for
    a visit. Mr. Fleetwood died from his wounds.

[2]

The appellant was charged with second-degree
    murder. He admitted killing Mr. Fleetwood. He claimed he acted in self-defence
    and did not mean to kill Mr. Fleetwood or cause him serious bodily harm that he
    knew was likely to cause Mr. Fleetwoods death. The evidence also gave rise to
    the defence of provocation.

[3]

The jury convicted the appellant of second-degree
    murder. The trial judge imposed a life sentence with no parole eligibility for
    13 years. The appellant appealed conviction and sentence.

[4]

On the conviction appeal, the appellant advanced
    five grounds. Two alleged misstatements of parts of the evidence by the trial
    judge, and in one instance by the Crown. The other grounds of appeal alleged
    misdirection in the jury instructions.

[5]

The sentence appeal focused on the trial judges
    finding the appellant was the aggressor in the confrontation with Mr.
    Fleetwood.

[6]

At the end of oral argument, the court advised
    counsel the conviction appeal was dismissed with reasons to follow. The court
    reserved judgment on the sentence appeal. These reasons set out the basis upon
    which both the conviction and sentence appeals are dismissed.

B.

the evidence

[7]

On August 30, 2012, the appellant travelled from
    his home in Toronto to Peterborough to visit Mr. Fleetwood. They had known each
    other since they were teenagers and got together from time-to-time to drink and
    play video games.

[8]

The appellant arrived at Mr. Fleetwoods home
    around 2:00 p.m. They set up their Xbox consoles, had a few drinks and smoked
    some marihuana. The appellant described himself as buzzed, but not drunk. A
    short time later, Mr. Fleetwood lay dead in his bedroom, having suffered 30
    knife wounds, several of which were potentially fatal. The appellant had fled
    Mr. Fleetwoods home and made his way back to Toronto. Mr. Fleetwoods body was
    not found until four days later on September 3, 2012.

[9]

Mr. Fleetwood and the appellant were the only
    people in Mr. Fleetwoods home when the appellant killed Mr. Fleetwood. The
    only direct evidence of what happened came from the appellant.

[10]

The appellant testified, while he and Mr.
    Fleetwood were playing video games and chatting, he mentioned to Mr. Fleetwood
    his house was very cluttered and messy. The appellant meant nothing by the
    comment, but Mr. Fleetwood took offence. He told the appellant the stuff
    cluttering his home belonged to his deceased father. The appellant assured Mr.
    Fleetwood he had not intended to disrespect his father.

[11]

According to the appellant, Mr. Fleetwood went
    into the kitchen and returned with a large kitchen knife. He scratched the
    appellants Xbox. The appellant responded by grabbing Mr. Fleetwoods hard
    drive and slamming it to the floor. The appellant decided it was time to leave
    and went upstairs to retrieve his bag and cellphone. His cellphone was charging
    in Mr. Fleetwoods bedroom.

[12]

As the appellant was leaving Mr. Fleetwoods
    bedroom with his cellphone, Mr. Fleetwood confronted him at the door. He was
    angry and yelling at the appellant. The appellant pushed Mr. Fleetwood and he
    tripped and fell to the floor.

[13]

Mr. Fleetwood got up and came aggressively toward
    the appellant, swinging at him. The appellant was still standing in Mr.
    Fleetwoods bedroom. He put his right hand up to block what he thought was a
    punch coming from Mr. Fleetwood. In fact, Mr. Fleetwood had the large knife in
    the hand he was swinging toward the appellant. The appellant instinctively
    grabbed the knife blade with his right hand, as it came toward him. He suffered
    a deep cut between his thumb and forefinger. The appellant went to the hospital
    in Toronto later that night and received ten stitches to close the wound.

[14]

The appellant testified when he grabbed the
    blade of the knife, he immediately felt intense pain. He could not, however,
    let go of the blade as he feared Mr. Fleetwood would stab him. They wrestled on
    the floor of the bedroom. The struggle went on and intensified. The appellant
    could not remember many of the details but did recall poking Mr. Fleetwood in
    the eye and eventually gaining control of the knife with his left hand.

[15]

The appellant swung the knife with his left hand
    in Mr. Fleetwoods direction. He also made stabbing motions toward Mr.
    Fleetwood. According to the appellant, his eyes were closed most of the time.
    He was in extreme pain from the cut on his hand, overwhelmed by the
    circumstances, and very afraid.

[16]

The appellant knew he struck Mr. Fleetwood in
    the chest with the knife at least once. He could not say how many times he hit
    him with the knife, or where those blows landed on Mr. Fleetwood.

[17]

The appellant did not know exactly how the
    struggle with Mr. Fleetwood ended. He was able to make his way from the bedroom
    to the bathroom. He closed the door in an effort to get away from Mr.
    Fleetwood. The appellant believed Mr. Fleetwood was still alive, because he heard
    him make gurgling sounds in the bedroom. The appellant passed out in the
    bathroom. When he regained consciousness, he washed his hands and placed a
    facecloth around the cut on his right hand. He tried to clean up the blood in
    the bathroom using water and cleaning products he found in the bathroom.

[18]

The appellant next returned to the bedroom and
    saw Mr. Fleetwoods body lying on the floor. He appeared to be dead. There was
    blood everywhere. The appellant made no effort to determine whether Mr.
    Fleetwood was dead or alive.

[19]

The appellant did not call 911 or otherwise seek
    any help. Instead, he set about cleaning up the blood in the bedroom, hallway
    and bathroom using water and cleaning products. There was evidence from which
    it could be inferred the appellant showered, although he denied doing so.

[20]

The appellant put various bloodstained items,
    including Mr. Fleetwoods Xbox, his cellphone, the appellants own clothing,
    and blood-soaked towels, into two garbage bags and a smaller bag. The appellant
    took the bags with him when he left Mr. Fleetwoods home. As he headed to the
    bus station, he dropped the bags full of the bloodied material beside other
    garbage bags on the curb awaiting garbage pick-up.

[21]

The appellant acknowledged in his evidence he
    attempted to clean up his blood at the scene and removed various bloodied items
    from the residence. When asked why he did so, he replied:

Cuz my blood was on itbecause I was scared, I
    was confused, and I just didnt want no part of what just happened.

[22]

The appellant returned to Toronto. He lied to
    his ex-girlfriend about his whereabouts that afternoon. He lied to his brother
    about the cause of the injury on his hand. He repeated that lie to the doctor
    who stitched him up that night at a Toronto hospital.

[23]

The large kitchen knife used to kill Mr.
    Fleetwood was found about four feet from his body. DNA testing linked blood on
    the blade and the handle to the appellant. DNA testing also linked blood found
    on the knife to Mr. Fleetwood. The copious amounts of blood in the bedroom were
    linked to Mr. Fleetwood only.

[24]

While the defence case rested on the testimony
    of the appellant, the Crowns case relied on the evidence of the number,
    location, and nature of the wounds inflicted on Mr. Fleetwood by the appellant,
    and the appellants conduct after he killed Mr. Fleetwood. I have summarized
    his after-the-fact conduct. The Crown argued the appellants failure to call
    for help, his attempt to clean up the scene, his flight, his removal of
    material evidence from the scene, and the lies he told to various people were
    all consistent with the appellant having unlawfully killed Mr. Fleetwood, and
    inconsistent with the appellants claim he acted in self-defence. The trial
    judge instructed the jury the after-the-fact conduct, although relevant to
    whether the appellant acted in self-defence, could not assist the jury in
    differentiating between murder and manslaughter.

[25]

The evidence about the many wounds suffered by
    Mr. Fleetwood came primarily from Dr. Rose who performed the post-mortem. She
    located 30 wounds, all consistent with having been inflicted by a sharp knife.
    Mr. Fleetwood had wounds on his face, head, hands, the front and back of his
    torso, and his arms.

[26]

Dr. Rose explained she followed the usual protocol
    in describing the many wounds suffered by Mr. Fleetwood. She characterized all
    of the wounds as sharp force injuries, meaning injuries inflicted by an
    object that had a pointed tip and a sharp edge. A sharp knife is the most
    common example of a weapon that causes sharp force injuries.

[27]

Dr. Rose divided the sharp force injuries into
    two categories. One category, incised wounds, consists of wounds that are
    longer than they are deep. Incised wounds are inflicted with a slashing motion.
    They are not, however, necessarily shallow wounds. By definition, they are
    longer than deep, meaning a long incised wound might also be quite deep.

[28]

The second category of wounds, stab wounds, are
    wounds that are deeper than they are long. Those wounds are inflicted with a
    thrusting or stabbing motion.

[29]

Dr. Rose testified the decomposition of Mr.
    Fleetwoods body made it difficult to characterize some of the wounds as
    incised or stab wounds. She also indicated the decomposition of the body and
    the number of wounds to the torso made it impossible to match specific wounds on
    the torso to specific internal injuries.

[30]

Dr. Rose identified the following knife wounds
    on Mr. Fleetwoods body:

·

Two incised wounds on his scalp. Both wounds pierced
    all layers of the scalp down to the skull;

·

Four wounds to the face, including one that cut
    through the cartilage composing the nasal septum;

·

Twelve wounds to the torso, four to the front,
    one to the side, and seven to the back; and

·

Ten incised wounds on Mr. Fleetwoods arms and
    two on the hand. Dr. Rose characterised these as defensive type injuries.

[31]

Dr. Rose could not opine on the order in which
    the many blows were inflicted. Nor could she identify a specific wound as the
    cause of death. Several of the wounds to the torso caused significant damage to
    various internal organs, including the liver, both lungs, the heart and the
    thoracic aorta.

[32]

Various injuries to Mr. Fleetwoods internal
    organs were potentially fatal on their own. The stab wound piercing the front
    and back walls of Mr. Fleetwoods thoracic aorta would have caused his death
    within a few minutes. Dr. Rose testified the wounds to the torso, considered as
    a group, caused Mr. Fleetwoods death.

[33]

Dr. Rose observed some of the wounds, including
    some of the wounds to the torso, cut through bone, cartilage or muscle,
    indicating the appellant used significant force to inflict those wounds.

[34]

In cross-examination, Dr. Rose confirmed the
    decomposed state of the body made it impossible to characterize some of the
    wounds as either incised or stab wounds. Dr. Rose also agreed some of the
    wounds on Mr. Fleetwoods torso could have been caused by knife wounds
    inflicted using a swinging rather than a stabbing motion.

C.

the grounds of appeal

(i)

Did the Crown and the Trial Judge Misstate the
    Forensic Evidence?

[35]

Crown counsel, in the course of cross-examining
    the appellant and in her closing argument, repeatedly referred to 30 stab
    wounds when describing Mr. Fleetwoods injuries. The trial judge also referred
    to 30 stab wounds from time-to-time in his instructions when referring to the
    evidence of the wounds suffered by Mr. Fleetwood.

[36]

The appellant contends the reference by the
    Crown and the trial judge to 30 stab wounds amounted to a serious misstatement
    of Dr. Roses evidence. The appellant argues, on Dr. Roses evidence, only some
    of the knife wounds were stab wounds. As outlined above, Dr. Rose described all
    30 knife wounds as sharp force injuries, some of which she characterized as
    incised wounds (longer than deeper); some she characterized as stab wounds (deeper
    than long); and some she could not definitively characterize as either incised
    or stab wounds.

[37]

Counsel submits the Crown and the trial judge
    were required to distinguish between incised wounds and stab wounds when
    referring to the knife wounds in cross-examination, closing argument, or the
    instructions to the jury. The appellant submits the distinction drawn by Dr.
    Rose was important to the defence in that Dr. Roses description of the manner
    in which incised wounds were inflicted was consistent with the appellants
    description of swinging the knife blindly in an effort to defend himself.

[38]

The distinction between incised wounds and stab
    wounds, as articulated by Dr. Rose, offered some support for the defence
    position concerning the manner in which the injuries occurred. I observe,
    however, that support seems limited. The many internal injuries inflicted on
    Mr. Fleetwood by the appellant clearly indicate he was doing more than blindly waving
    the knife about. It is also significant experienced trial counsel did not rely
    on the distinction between incised wounds and stab wounds in his closing argument.
    Instead, counsel relied on the 20 or 30 blows struck by the appellant with
    the knife as indicative of the appellants desperation.

[39]

Whatever the value to the defence case of the
    distinction between incised wounds and stab wounds might have been, I do not
    accept Crown counsel or the trial judge were required to use exclusively Dr.
    Roses nomenclature when referring to the knife wounds. Dr. Rose used the
    terminology commonly employed by pathologists to help her describe the contours
    of individual knife wounds. To the extent counsel or the trial judge were
    referencing Dr. Roses evidence, it is incumbent on them to do so accurately. However,
    in referring to the wounds themselves, ordinary parlance allows for the
    description of all wounds inflicted with the knife as stab wounds. I see
    nothing misleading in referring to 30 stab wounds when describing the number of
    wounds, or the location of the wounds on Mr. Fleetwoods body.

[40]

For example, in cross-examination, Crown counsel
    sought to stress the number and location on Mr. Fleetwoods body of the many
    knife wounds inflicted by the appellant. The Crown did so to rebut the
    appellants evidence he swung wildly and defensively with his eyes closed, not
    meaning to cause Mr. Fleetwood serious harm. For the purposes of the Crowns
    questions, it did not matter whether any particular wound was characterized by
    Dr. Rose as an incised wound or a stab wound. What mattered to the Crowns
    questions was the number of wounds and the location of the wounds on Mr.
    Fleetwoods body. In that context, there is nothing misleading in the use of
    the more generic phrase stab wounds. The same observation applies to the
    trial judges reference to 30 stab wounds in the course of his summarizing
    parts of the evidence relevant to the various issues.

[41]

There was no objection by counsel for the
    appellant to the Crowns questioning or to the language used by the trial judge
    in reference to the 30 stab wounds.

[42]

Counsel for the appellant also argues some of
    the appellants answers to Crown counsels questions about 30 stab wounds indicate
    those questions were misleading. I disagree. On occasion when answering
    questions in which the Crown had made reference to 30 stab wounds, the
    appellant referred to Dr. Roses distinction between incised wounds and stab
    wounds. To the extent the appellant regarded that distinction as relevant to
    his answer, he was entitled to make the distinction as part of his answer.
    However, the Crown was not obliged to incorporate the distinction, which the
    Crown viewed as irrelevant for its purposes, into the question.

[43]

Not even Dr. Rose maintained the distinction
    between incised wounds and stab wounds throughout her evidence. She used the
    phrase stab wounds when referring to all of the wounds to the torso, although
    she testified she could not characterize some of those wounds as incised or stab
    wounds due to the decomposition of the body. The stab wounds to Mr. Fleetwoods
    torso caused his death.

[44]

It goes without saying that all counsel and
    trial judges do their best to state the evidence accurately.  Neither the Crown
    nor the trial judge are, however, required to use terminology that best accords
    with the defence position. Considered in the context in which the trial judge
    and the Crown used the phrase 30 stab wounds, and bearing in mind the limited
    purpose underlying the distinction drawn by Dr. Rose between incised wounds and
    stab wounds, the use of the phrase 30 stab wounds did not misstate her
    evidence or mislead the jury.

(ii)

Was the W.(D.) jury instruction adequate?

[45]

The appellant makes three arguments:

·

the jury was not told it must consider the
    appellants testimony in accordance with the three-step process described in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742
;

·

the
W.(D.)
instruction on self-defence
    was misplaced, incomplete and potentially confusing; and

·

there was no
W.(D)
instruction with
    respect to the defence of provocation or the
mens rea
requirement.

[46]

The trial judge gave a thorough instruction
    on the presumption of innocence and the burden of proof at the outset of his
    charge. He did not give the
W.(D.)
instruction typically given when an accused testifies: see D. Watt,
Watts
    Manual of Criminal Jury Instructions
, 2
nd
ed., Carswell (2015): Final Instruction #16. The trial judge was not asked to
    give that instruction.

[47]

The customary
W.(D.)
instruction may well have been unhelpful, if not
    confusing. On that instruction, a jury is told to acquit, either if it believes
    the accuseds denial, or has a reasonable doubt, based on his evidence. That
    instruction does not accurately describe the application of reasonable doubt to
    the accuseds evidence when the defences of self-defence or provocation are
    advanced. Those defences have objective as well as subjective components. A
    jury may believe an accuseds testimony, or at least not reject it as untrue, and
    still find the accused did not act in self-defence or under provocation, as
    those terms are defined in the criminal law. The appellant relied on both
    self-defence and provocation. Neither could be properly assessed using the
    standard
W.(D.)
instruction: see
R. v. Reid
,
    [2003] O.J. No. 2822 (C.A.), at paras. 72-73;
R.
    v. Sadiqi
, 2013 ONCA
    250, at paras. 21-22.

[48]

The absence
    of a
W.(D.)
instruction does not necessarily amount to an error
    in law. As appellate courts have repeatedly stated, their assessment of the
    adequacy of jury instructions must proceed on a functional basis. Did the
    instructions, considered as a whole, adequately equip the jury to properly
    apply the law to the facts as found by the jury?: see
R. v. Colnen
,
    2019 SCC 6, at para. 8;
R. v. Vassel
, 2018 ONCA 721, at para. 151.

[49]

The jury
    instructions in this case repeatedly
reminded the jury the burden of proof remained on the
    Crown throughout and applied to each element of the offence of murder and each
    element of the defences of self-defence and provocation. I am satisfied, by the
    end of the instruction, the jury understood it must give the accused the
    benefit of any doubt, regardless of the evidentiary source of that doubt.

[50]


The trial judge did give a
W.(D.)
instruction in respect of the defence of
    self-defence. He gave the instruction, as counsel for the appellant submits,
    after his instruction on the first of the three elements of the defence of self-defence.
[1]
The trial judge told the jury
:

Now, if you accept the accuseds evidence and
    on the basis of it, you believe or have a reasonable doubt that he was acting
    in lawful self-defence as I have defined that term to you, you will find the
    accused man, Mr. Brown, not guilty.

Even if you do not accept Mr. Browns
    evidence, if, after considering it alone or in conjunction with the other
    evidence, you believe or have a reasonable doubt that he was acting in lawful
    self-defence as I have defined that term to you, you will find the accused not
    guilty.

[51]

The trial judges language reflects the modified
W.(D.)
instruction described in
R. v. Reid
. The appellant
    contends the instruction would have confused the jury, as the trial judge had
    not yet defined self-defence for the jury, but had addressed only the first of the
    three elements of that defence. It is true, although the trial judge had
    outlined all three elements of self-defence before he gave the modified
W.(D.)
instruction, he had not explained the
second
    and third elements.

[52]

The trial judges placement of the
W.(D.)
instruction after his description of the first element of the defence and
    before his description of the second and third may strike those familiar with the
    format of Model Jury Charges as awkward and even confusing. I do not think it
    would have that effect on 12 reasonable jurors unfamiliar with Model Jury
    Charges. The instruction was simple and straightforward. The jury was told it
    must take the definition of self-defence from the trial judge and, if  based on
    the jurys acceptance of the accuseds evidence, or a consideration of the
    accuseds evidence in conjunction with the other evidence, the jury had a doubt
    about the applicability of self-defence, the jury had to acquit the appellant.

[53]

The appellant next submits the
W.(D.)
instruction, as it relates to self-defence, was
    incomplete as it failed to refer to the third prong of the
W.(D.)
instruction. That prong requires the trial judge to
    instruct the jury, even if the appellants evidence does not leave the jury
    with a doubt, the jury can convict only if, based on the evidence it does
    accept, the Crown has proved guilt beyond a reasonable doubt. Although the
    trial judge repeatedly instructed the jury the Crown had the burden on each
    essential element of the defence of self-defence, he did not instruct the jury
    in the terms of the third prong in
W.(D.)
.

[54]

On the evidence in this case, if the jury totally
    rejected the appellants evidence, I see no reasonable prospect of any result
    other than a conviction on the charge of second degree murder. The appellant
    admitted he stabbed Mr. Fleetwood 30 times. Several of the wounds to the torso were
    potentially fatal. The appellants post-offence conduct strongly suggested he
    did not act in self-defence. If the jury rejected the appellants version of
    events outright, there was virtually nothing left in the evidence to offer any
    reasonable support for the defences of self-defence and provocation, or the
    claim the appellant did not act with the necessary intent.

[55]

There was no objection to the trial judges
W.(D.)
instruction on self-defence, either in the
    pre-charge discussions or after the charge was given
. Counsels
    silence at trial accurately reflects the reality of the evidence. The defences advanced
    depended entirely on the jury at least being uncertain about the truth of
    crucial portions of the appellants testimony. If the jurys credibility
    assessment effectively removed the appellants evidence from the mix, I see no
    prospect of anything but a conviction on the murder charge. If the failure to
    recite the third prong of the
W.(D.)
instruction amounts to a legal error, it was
harmless legal error
    in this case.

[56]

I also reject the appellants submission the
    trial judges failure to give a specific
W.(D.)
instruction in respect of provocation and intent
    amounts to reversible error. The trial judge could have given a modified
W.(D.)
instruction in respect of provocation, although it
    must be said it was not the appellants evidence, but the other evidence in the
    case, that lent some air of reality to the provocation defence. The trial judge
    could also have given the typical
W.(D.)
instruction in respect of intent. Instead, he
    repeatedly reminded the jury of the burden of proof and thoroughly reviewed the
    evidence relevant to provocation and intent. To the extent that evidence was
    exculpatory, it came almost entirely from the appellant. I am confident the
    jury appreciated it had to carefully consider the appellants evidence, on its
    own and in the context of the rest of the evidence. I am equally satisfied the
    jury understood that any doubt with respect to the essential elements of
    provocation, or the issue of intent, had to be resolved in the appellants
    favour.

(iii)

The instruction on the
mens rea
for murder

[57]

The trial judge described the appellants state
    of mind as the third essential element to be proved by the Crown to establish
    guilt on the murder charge. After addressing the first two elements (causation
    and the unlawful act requirement), the trial judge turned to the mental state
    required for murder. He said:

Earlier, I instructed you that to decide
    whether Crown counsel had proved beyond a reasonable doubt that Shaune Brown
    meant either to kill Cory Fleetwood, or meant to cause Cory Fleetwood bodily
    harm that Mr. Brown knew was likely to kill Mr. Fleetwood and was reckless
    whether Mr. Fleetwood died or not, you must consider all of the evidence.

[58]

The trial judge correctly identified the
mens
    rea
for murder in the above-quoted passage. Unfortunately, he misspoke
    when he indicated he had already instructed the jury on the
mens rea
required for murder. He had not.

[59]

The trial judge went on to review the evidence relevant
    to intent in detail, and to remind the jury of the Crowns burden of proof. He
    emphasized the need to examine the evidence as a whole. The trial judge
    returned to the
mens rea
requirement, repeating the instruction the
    Crown must prove either the appellant meant to kill Mr. Fleetwood or meant to
    cause him bodily harm he knew was likely to kill Mr. Fleetwood and was reckless
    as to whether death ensued.

[60]

During deliberations, the jury asked the trial
    judge to clarify the state of mind required for murder. The trial judge
    provided a succinct and accurate response. There was no objection.

[61]

Instructions to the jury must be considered as a
    whole, including any answers to questions posed by the jury. Assuming the trial
    judges misstatement in his initial instructions could potentially have caused
    some confusion, his concise and correct answer to the specific question posed by
    the jury removed any possibility of confusion as to the requisite
mens rea
for murder
.

(iv)

Did the trial judge err in his response to the
    jurys question on provocation?

[62]

The trial judge correctly left provocation with
    the jury, even though the appellant resisted any suggestion he lost control of
    himself during the fatal encounter with Mr. Fleetwood. The appellant does not take
    issue with the initial instructions on provocation.

[63]

The jury asked three questions relating to the
    instructions on provocation. The appellants argument on appeal focuses on the
    third question. In that question, the jury asked for the legal definition of
    loss of self-control.

[64]

The trial judge, after hearing submissions from
    counsel, interpreted the jurys question as directed at the second of the four
    elements of the defence of provocation, outlined by the trial judge in his
    initial instructions. In describing that element, the trial judge had told the
    jury to determine whether the wrongful act or insult was sufficient to deprive
    an ordinary person of the power of self-control.

[65]

The trial judge told the jury the words should
    be given their ordinary meaning. He went on to remind the jury of the
    ordinary person standard to be applied in addressing loss of self-control. In
    answering the question as he did, the trial judge followed the submissions of
    counsel for the appellant. The Crown had requested a wider response which
    included reference to the appellants state of mind. The Crown took the
    position the appellant had all but denied losing self-control in his testimony.
    On this view of the evidence, any reference to the subjective component of
    provocation could not help the appellant.

[66]

On appeal, the appellant argues the trial judge
    erred in focusing exclusively on the ordinary person standard when answering the
    question. He submits the jury should have been instructed on the other elements
    of the defence that engage the appellants subjective state of mind.

[67]

I interpret the question as the trial judge did.
    The trial judge properly focused his answer on the specific question asked. That
    question did not invite further instructions on other elements of the
    provocation defence.

(v)

Did the trial judge misstate the appellants
    evidence?

[68]

The appellant submits the trial judge repeatedly
    told the jury the appellant went to the bathroom after the struggle with Mr.
    Fleetwood ended to clean up. The appellant testified he made his way from the
    bedroom to the bathroom and closed the bathroom door in an effort to get away
    from Mr. Fleetwood. The appellant submits the trial judges misstatement of his
    purpose in going to the bathroom significantly undermined his self-defence
    claim.

[69]

I have outlined the appellants evidence on this
    point earlier in my reasons (see para. 17). It was common ground the appellant,
    after stabbing Mr. Fleetwood many times, made his way to the bathroom and,
    while in the bathroom, attempted to clean the blood in the bathroom and from
    his hands (at least) before he returned to the bedroom, where Mr. Fleetwood lay
    dead or dying. The appellant then set about trying to clean up his blood in the
    bedroom. The appellant maintained, however, that his purpose in going into the
    bathroom was not to clean up, but to get away from Mr. Fleetwood, who he
    believed was still alive.

[70]

The trial judge referred to the evidence
    relating to the appellants movement to the bathroom and his actions in the
    bathroom on four occasions during his instructions. On one of these occasions,
    when reviewing the position of the defence, the trial judge accurately set out
    the appellants evidence he went to the bathroom to try to get away from Mr.
    Fleetwood.

[71]

On the other three occasions, the trial judge
    made briefer references to the evidence and related it to certain issues
    pertaining to self-defence or the required
mens rea
. At least one of
    those references, and perhaps two, could be understood as the trial judge
    indicating the evidence was the appellant had gone to the bathroom to clean up.
    While that was the inference urged by the Crown, it was contrary to the
    appellants evidence.

[72]

I accept at least one, and perhaps two, of the
    trial judges references to the evidence can reasonably be characterized as a potentially
    misleading description of the appellants evidence. I do not, however, agree
    these statements vitiated the verdict.

[73]

The trial judge reminded the jury that it was
    their responsibility to determine the facts and their recollection of the
    evidence that mattered. I see no reason to think the jury did not follow that
    instruction.

[74]

I also do not share the appellants view as to
    the significance of the trial judges misstatement of the evidence. The
    after-the-fact conduct, considered as a whole, provided powerful evidence
    pointing away from self-defence. Assuming the appellant initially went to the
    bathroom to get away from Mr. Fleetwood, there remained a formidable body of
    after-the-fact conduct supporting the Crowns position. On the appellants own
    evidence, he remained in the bathroom, attempting to clean up the blood without
    making any effort to assist Mr. Fleetwood, even though he knew he had stabbed
    Mr. Fleetwood and Mr. Fleetwood was making gurgling sounds in the bedroom. Even
    after the appellant returned to the bedroom, he focused on attempts to destroy potential
    evidence, rather than making any effort to assist Mr. Fleetwood.

[75]

There no doubt may be a case in which a trial
    judge misstates the evidence on a single crucial point in a manner that so
    prejudices the appellant, as to result in a miscarriage of justice. That is not
    this case.

D.

the sentence appeal

[76]

The trial judge increased the period of parole
    ineligibility from the minimum of 10 years to 13 years because of the very
    violent nature of the murder, his finding the appellant was the aggressor, and
    the appellants significant criminal antecedents.

[77]

This court defers to the sentence imposed by the
    trial judge, absent a demonstrated error in law or principle, or a
    determination the sentence is demonstrably unfit: see
R. v. Lacasse
,
    2015 SCC 64, at paras. 11, 43-44, 52;
R. v. M.(C.A.)
, [1996] S.C.J.
    No. 28, at paras. 89-91.

[78]

The appellant contends the jurys rejection of
    his provocation and self-defence claims did not provide a basis upon which the
    trial judge could find the appellant was the aggressor. I accept the jurys
    verdict does not necessarily compel the conclusion the appellant was the
    aggressor. Nor, however, does the verdict preclude the trial judge from finding
    the appellant was the aggressor. That factual finding is not inconsistent with
    any factual finding implicit in the jurys verdict: see
R. v. Ferguson
,
    2008 SCC 6, at paras. 16-18;
R. v. Landry
, 2016 NSCA 53, at para. 48;
Criminal
    Code
, s. 724(2).

[79]

The physical evidence and the appellants
    post-offence conduct offered ample support for the trial judges conclusion the
    appellant was the aggressor. Although the trial judge did not specifically
    indicate he made the finding on the reasonable doubt standard, there is nothing
    in his reasons to suggest he applied the wrong standard.

[80]

The trial judge did not err in law or principle
    and the sentence is not demonstrably unfit.

E.

conclusion

[81]

The appeal from conviction is dismissed. The
    appeal from sentence is dismissed.

Released:

DD
JULY 16
    2020


Doherty J.A.

I agree J.C. MacPherson J.A.

I agree M.L. Benotto J.A.





[1]

The trial judge charged the jury on the applicable
    self-defence provision, as it existed at the time of the homicide. That section
    has been repealed and replaced by the present s. 34:
S.C. 2012
, c. 9, s. 2.


