



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Berry, 2017 ONCA 17

DATE: 20170112

DOCKET: C54573

MacPherson, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chas Ronald Berry

Appellant

Lance Charles Beechener and Eva Taché-Green, for the appellant

Eric Siebenmorgen, for the respondent

Heard: November 14, 2016

On appeal from the conviction entered by Justice John B.
    McMahon of the Superior Court of Justice, sitting with a jury, on December 15,
    2010, and from the sentence imposed on February 3, 2011.

R.A. Blair J.A.:

[1]

Mr. Berry shot and killed Andrew Christie in the doorway of Mr. Christies
    apartment on December 19, 2004. Although charged with first degree murder, he
    was convicted of second degree murder in December 2010, and shortly thereafter
    sentenced to life imprisonment without eligibility for parole for 17 years.  He
    appeals both his conviction and sentence.

[2]

The appellant testified at trial. He admitted shooting the deceased but
    claimed he was acting in self-defence; in the alternative, he relied on the
    defence of provocation. On appeal he raises the following grounds, arguing that
    the trial judge erred (i) in admitting evidence of an accomplices manslaughter
    conviction in relation to the same killing; (ii) in admitting evidence of
    certain
ante-mortem
statements by the deceased: (iii) and in his
    instructions to the jury respecting post-offence conduct, self-defence, and
    provocation. With respect to sentence, he submits that the imposition of a
    17-year period of parole ineligibility was unreasonable.

[3]

For the reasons that follow, I would dismiss both the conviction and the
    sentence appeals.

Factual Background

[4]

The appellant was 20 years old at the time of the shooting. The deceased
    was 23. They had met about a year earlier when both were in custody at the
    Toronto West Detention Centre. The evidence indicates that the two were
    associates in the drug trade, but had had a falling out shortly before the
    shooting.

[5]

In December 2004, the deceased was living with his fiancée in an
    apartment in Scarborough. His fiancée, Sahsah Richards, was pregnant with their
    child at the time. The deceased was the friend of another man, Antonio Miller,
    who lived down the hall in the same building. Miller lived with his girlfriend,
    Elisha Berry, and her sister, Cashasha Berry. Elisha and Cashasha are the appellants
    sisters and the appellant attended at the apartment building from time to time
    to visit them.

[6]

The evidence indicated that both the deceased and appellant were
    involved in the drug trade, but there was conflicting evidence about the nature
    of their relationship. The appellant said that he sold crack for the deceased
    on consignment. Millers evidence confirmed that the deceased was a drug dealer.

[7]

The deceaseds fiancée admitted that the deceased had been a user, but denied
    he was a dealer. She said he had stopped using drugs in the spring of 2004
    after she threatened to leave him if he did not do so. She also said that the
    deceased told her the appellant tried to sell him drugs, but he refused. Guns
    and drug paraphernalia were found in the apartment of the deceased and his fiancée
    after the shooting.

The Price Chopper
    Encounter

[8]

On the afternoon of the shooting, the appellant and the deceased had an
    encounter at a Price Chopper store when the appellant was out Christmas
    shopping with his sisters. The appellant testified that he and the deceased had
    an argument. The deceased wanted payment of $350 for drugs he had given the
    appellant to sell. The appellant did not have the money.

[9]

On his return to the apartment, the deceased told his fiancée that he
    had met Beef (the appellant) at Price Chopper, that the appellant had tried
    to sell drugs to him, but that he had refused, and that the appellant had said
    it was a war ting, it was sort of a disrespect thing and there [are]
    problems. The admissibility of these purported statements by the deceased is
    an issue on the appeal.

The Hallway Encounter

[10]

In any event, another encounter followed later that same day between 15
    and 45 minutes before the shooting. After returning from Price Chopper and
    speaking with his fiancée, the deceased went to Millers apartment looking for
    the appellant. The appellant was not there. As it happened, however, the
    deceased met the appellant and his sisters (who were returning from their shopping)
    in the hallway as he was going back to his apartment. They had a discussion and
    began walking away from each other when the deceased turned back, walked up to
    the appellant, and according to Miller  who was watching through his apartment
    door peephole  pulled out a Glock handgun with a laser sight on it and pressed
    it against the appellants neck.

[11]

This incident went no further, but not surprisingly, the appellant was
    shaken by it. He testified he was frustrated, angry, lost and humiliated in
    front of [his] family.  He went into Millers apartment to use the bathroom
    and told Miller not to worry and that everything [was] cool.  Miller thought
    the appellant looked shocked after the gun threat.

[12]

The deceased returned to his apartment. He told his fiancée he had met
    the appellant in the hallway and that the appellant had reiterated his
    statement that its a war ting and told him not to be around the building. He
    did not tell his fiancée about threatening the appellant with a gun.

[13]

According to Miller, the deceased  in both a telephone conversation and
    a subsequent discussion in the stairwell  offered Miller his apologies for his
    treatment of the appellant in the hallway and said that he would speak to the
    appellant later.

The Shooting

[14]

The appellant testified that he left Millers apartment to get some
    air and to go downstairs to meet someone for marijuana. Then things just happened
    quickly.

[15]

The appellant met another drug dealer  Joey  in the stairwell. Joey
    happened to have a gun and offered the gun to the appellant, if he (the
    appellant) thought he needed it or should have a gun for protection. The
    appellant happened to accept the gun.

[16]

Just then another man who lived on the same floor, Alexander Jovanovski,
    was leaving his apartment and came across the appellant and Joey in the
    stairwell. Jovanovskis evidence was that the appellant politely asked him if
    he would step into the hallway so that he could speak to him; the appellant
    then asked Jovanovski to go to Apartment 305 and tell [the deceased] to come
    outside in the hallway, he had someone to speak to him.

[17]

Jovanovski agreed. The appellant testified that he made the request
    because he wanted to discuss the prior confrontation with the deceased to clear
    the air. Although the appellant said the gun was in his pocket, Jovanovski
    testified that the appellant had his left hand behind his back and he thought
    that the appellant was holding a knife or a gun. In any event, Jovanovski
    knocked on the door and, when the deceaseds fiancée answered, asked to speak
    to the deceased.

[18]

At this time, the appellant had positioned himself so that he was standing
    against the wall at the side of the door and was concealed from the sight of
    anyone in the doorway. According to Jovanovski the appellant revealed himself
    as the deceased approached the door. The appellant shot the deceased six times,
    four times in the head, once in the neck and once in the chest  most at close
    range. The chest and head wounds, on their own, were inevitably fatal. 
    Christie died almost immediately.

[19]

At trial, witnesses provided conflicting testimony about what actually
    occurred during the shooting. The evidence of the deceaseds fiancée was that,
    although she and the deceased tried to close the door, the appellant came in
    charging, shooting with his right hand and pushing the door open with his
    left.

[20]

Although Jovanovski never actually saw a gun in the appellants hand,
    his evidence was that, when the appellant revealed himself, the deceased kind
    of tried to put up his hands like as a defence and he heard the firearm
    discharge.

[21]

The appellant testified, on the other hand, that when Jovanovski called the
    deceased to come out, he (the appellant) asked the deceased if he could talk to
    him, but the deceased became threatening and looked like he was reaching for
    his waistline. Because of the previous incident with the gun in the hallway,
    the appellant believed that the deceased was reaching for a gun. He acted in
    self-defence and started opening fire. He doesnt remember what happened
    immediately afterwards.

Subsequent Events

[22]

What happened immediately afterwards was that the appellant fled the
    building, threw the gun away in a sewer and disappeared. He was not arrested on
    these charges for another one and one-half years, when he was taken into
    custody on an entirely unrelated matter. Once identified, the appellant was
    charged with first degree murder.

[23]

When the police searched the apartment following the shooting they
    seized two firearms (a 12 gauge sawed-off shotgun and a 9 mm Glock handgun
    containing live ammunition), other ammunition, a box for a small scale (the
    scale was found outside the apartment building) and other paraphernalia related
    to the drug trade. There was evidence that persons close to the deceased and
    his fiancée had disposed of various other drugs and stuff from the apartment.

[24]

Jovanovski was arrested the day of the shooting and charged with first
    degree murder. In August 2005, he pled guilty to manslaughter and received a
    one-year conditional sentence in addition to 200 days of pre-trial custody. 
    Jovanovski did not respond to a subpoena to testify at trial and could not be
    located for apprehension under a material witness warrant issued by the trial
    judge. The Crown sought to enter the transcript of his evidence at the
    preliminary hearing for the truth of its contents. The defence contested the
    admissibility of only one part of the transcript: the evidence relating to
    Jovanovskis plea of guilty and conviction for manslaughter and the sentence he
    received. The trial judge admitted this, a ruling that is contested on the
    appeal.

The Characteristics of the
    Appellant

[25]

At trial, the defence called a psychologist, Dr. Pollock, who testified
    as to the appellants reduced cognitive abilities and his personality traits. In
    terms of the appellants cognitive abilities, Dr. Pollock testified that he was
    of modest intelligence, with an IQ in the 5
th
percentile (meaning
    that 95% of individuals his age would score higher). In terms of his
    personality, it was Dr. Pollocks opinion that the appellant was anxious,
    self-centred, emotionally detached, socially awkward, and suspicious of other
    people. Because of these characteristics, persons with the appellants profile
    are easily slighted and are particularly sensitive to perceived threats or
    provocation; they have a tendency to misinterpret their social perceptions and experience
    challenges trying to solve difficult problems in times of stress.

[26]

This evidence was led in support of the appellants claim that he had
    acted in self-defence or as a result of provocation.

Issues on Appeal

[27]

The appellant raises the following issues on appeal:

(a)

Was Jovanovskis manslaughter
    plea and conviction improperly left to the jury?

(b)

Were the deceaseds
ante-mortem
statements to his fiancée improperly admitted into evidence?

(c)

Did the trial judge err in his
    instructions to the jury with respect to:

(i)

post-offence conduct?

(ii)

self-defence?

(iii)

provocation?

(d)

Was the imposition of a 17-year
    period of parole ineligibility reasonable?

[28]

We called on the Crown only with respect to the admission into evidence
    of the accomplices manslaughter conviction (issue (a)). I will deal briefly
    with all issues, however.

Discussion and Analysis

Jovanovskis Guilty Plea
    and Conviction

[29]

Jovanovski did not respond to a subpoena to testify at trial nor were
    the police able to apprehend him after the trial judge issued a material
    witness warrant. The Crown therefore applied to have his evidence at the
    preliminary inquiry read to the jury as proof of the truth of its contents. The
    defence accepted that the necessity and reliability criteria of the principled
    exception to the hearsay rule were met, and did not object except for one part.
    The defence argued that the portion of the transcript referring to Jovanovskis
    plea of guilty and conviction for manslaughter and the sentence he received should
    not be read to the jury.

[30]

The Crowns submission at trial was that the jurors would lack context
    and be left in a vacuum  with an elephant in the room, as counsel put it 
    if they were deprived of that information, i.e., they would be left asking
    themselves what had happened to the accomplice. The Crown did not seek to
    introduce the evidence for purposes of attacking Jovanovskis credibility.

[31]

Defence counsel accepted the elephant-in-the-room image, but sought to
    turn it on its head and to the appellants advantage by arguing that [t]he
    elephant is now in the room in the shape of this big fat manslaughter
    conviction which is going to stop them from weighing properly [the] defences of
    provocation and self-defence. He submitted that, if the jurors had to know
    that Jovanovski had been arrested, they could simply be told that he had been
    dealt with elsewhere.  Otherwise it would be unfair to the appellant for two
    reasons: first, because the jurors might assume that a judge had given a seal
    of approval to the particular set of facts that Jovanovski had adopted at the
    time of the plea; and secondly, because, once they heard that Jovanovski, a
    minor player, had pled guilty to manslaughter in connection with the shooting
    they might well draw the impermissible inference that the appellant  the
    admitted shooter  must be guilty of
something
, thereby nullifying at
    least the self-defence defence.

[32]

The trial judge declined to edit the evidence of the guilty plea and
    conviction out of what was read to the jury.

[33]

In the trial judges view, this evidence was important for credibility
    purposes. As he said, the jury could not assess the credibility of Jovanovskis
    evidence in a vacuum: the status of an accomplices charge is a vital factor
    in assessing the credibility of the accomplice witnesses. The trial judge was
    satisfied, therefore, that the evidence of Jovanovskis guilty plea and conviction
    and the sentence he received was highly relevant and material to Jovanovskis credibility
    which, in turn, was an important factor for the jury to consider in its
    determination of the main issues of self-defence, provocation and (if intent to
    commit murder were established) planning and deliberation.

[34]

It was open to the trial judge to adopt this approach, in my opinion,
    because the guilty plea and conviction may well have provided the strongest
    basis upon which Jovanovskis credibility  and therefore his evidence, which
    was central to the Crowns case  could be attacked by the defence. In this
    respect, the decision was favourable to, rather than prejudicial to the
    appellant.

[35]

At the same time, however, the trial judge was very much alive to the
    need to balance the probative value of the contested evidence against its
    prejudicial effect. He recognized the settled law that the guilty plea of an
    accomplice or co-accused has no relevance to the ultimate issue of guilt or
    innocence of the accused: see
R. v. Berry
, [1957] O.R. 249 (C.A.);
R.
    v. Buxbaum
(1989), 33 O.A.C. 1 (C.A.), leave to appeal to S.C.C. refused,
    [1989] S.C.C.A. No. 239;
R. v. Lessard
(1979), 50 C.C.C. (2d) 175
    (Que. C.A.);
R. v. Caesar
, 2016 ONCA 599, 350 O.A.C. 352. In the
    course of his thorough probative value/prejudicial effect analysis, the trial
    judge gave careful consideration to defence counsels argument about the
    prejudicial impact of the accomplices guilty plea.

[36]

The trial judge fully understood the danger that jurors might use the
    guilty plea to draw impermissible inferences. He concluded, nonetheless, that
    the risk could be effectively managed by clear instructions to the jury about
    the permissible and impermissible uses to which the evidence relating to the
    guilty plea could be put. On that basis he was satisfied that the probative
    value of the evidence outweighed its prejudicial effect and ruled that it was
    admissible.

[37]

In keeping with that reasoning, the trial judge did give very clear
    instructions, both before Jovanovskis evidence was read to the jury and in his
    charge to the jury. In his mid-trial instruction, he said:

Mr. Jovanovskis guilty plea,
and this is
    very important
, has absolutely no bearing on whether Mr. Berry is guilty
    of first-degree murder or any included offence.
You must
    not think
that because Mr. Jovanovski has pleaded guilty,
Mr. Berry must be guilty of something too
. Mr.
    Jovanovski may have any number of reasons for pleading guilty and any number of
    reasons for testifying at Mr. Berrys trial through being called by the Crown. 
    The fact Mr. Jovanovski pleaded guilty to manslaughter and received a particular
    sentence
is only relevant in assessing Mr. Jovanovskis
    credibility
. [Emphasis added.]

[38]

The trial judge repeated this instruction in essentially the same terms
    in his charge to the jury. Indeed, he reinforced it by adding the following:

Mr. Jovanovski may have had [a] great number of reasons for
    pleading guilty and any number of reasons for testifying for the Crown at Mr.
    Berrys trial. He may have pleaded guilty so he could get out of jail. He may
    have pleaded guilty because he took responsibility for his actions.  It is for
    you to decide how much or little weight you put on Mr. Jovanovskis guilty plea
    in assessing his credibility.
Remember, his guilty plea
    has zero relevance in your determination of whether Mr. Berry is guilty of any
    offence
. [Emphasis added.]

[39]

These sharp and clear-cut directives reminded the jury that Jovanovski
    may well have had his own motives for the plea and for giving the evidence he
    gave, while at the same time leaving no doubt that the jury was not to use the
    evidence of the guilty plea to determine any issues of guilt or innocence, but
    only for purposes of assessing the credibility of Jovanovskis evidence.

[40]

In addition, the trial judge provided a strong
Vetrovec
-like
    charge
[1]
that was to the appellants advantage in terms of the jurys assessment of
    Jovanovskis credibility and evidence. In this portion of the charge, he
    directed the jurors to consider whether Jovanovski had a motive to be
    untruthful or a reason to downplay his involvement and exaggerate the
    appellants role. He told them there was good reason to look at Jovanovskis
    evidence with the greatest care and caution and that it would be dangerous
    for them to rely on that evidence without confirmation from some other source.

[41]

In view of the foregoing, the jury could not have been confused or left
    in any doubt about the two important features of Jovanovskis guilty plea and
    sentence from the defence point of view: first, that the evidence could not be
    used for the purpose of determining the appellants guilt or innocence, but
    only for the purpose of assessing his credibility; and secondly, that
    Jovanovski may have had a motive to fabricate his evidence because he had
    received favourable treatment in his own case, in exchange for his testimony
    against the appellant.

[42]

The exercise of weighing the probative value of proffered evidence
    against its potential prejudicial effect in the course of the dynamics of a
    trial is a discretionary task for which trial judges are particularly well-suited.
    Their decisions in that regard are entitled to deference. See, for example,
R.
    v. Hart
, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 110. Absent an error
    of law or principle, a material misapprehension of the evidence, or a palpable
    and overriding error of fact in the exercise of that discretion, there is no
    basis for an appellate court to interfere.

[43]

I see no such error here, and would not give effect to
    this ground of appeal.

The
    Deceaseds
Ante-Mortem
Statements

[44]

The Crown successfully brought a pre-trial motion for permission to
    adduce three different statements made by the deceased to his fiancée,
    Richards, prior to his death. They are alluded to above but may be summarized
    as follows:

·

Sometime in the months before the shooting, Richards saw the
    deceased with the appellant.  The deceased later told her that the appellant asked
    him to sell drugs for the appellant;

·

On the day of the shooting, after the Price Chopper encounter, the
    deceased told his fiancée that the appellant wanted him to sell drugs and that
    when he refused, the appellant responded that it was a war ting;

·

Upon returning to his apartment after the incident in the
    hallway, between 15 and 45 minutes before the shooting, the deceased told his
    fiancée that the appellant had again said that it was a war ting and warned the
    deceased not to be around the building.

[45]

The trial judge admitted the statements. Recognizing that they were
    hearsay, and presumptively inadmissible, he concluded that they met the
    necessity and reliability criteria for admission under the principled exception
    to the hearsay rule. Balancing their prejudicial effect against their probative
    value, he found that although the statements were prejudicial to the appellant
    (they reflected discreditable conduct, drug dealing, on his part) they were
    highly probative. The trial judge noted the statements were relevant to the
    provocation issue and possibly self-defence, and to animus and motive going to
    the issues of intent, provocation and planning and deliberation, as well as providing
    narrative and context. Their probative value therefore outweighed their
    prejudicial effect.

[46]

The appellant argues that the statements were unreliable and should not
    have been admitted. He submits that the trial judge gave insufficient
    recognition to the fact that the deceased had a compelling motive to lie to his
    fiancée about the drug dealing in order to convince her  a suspicious partner,
    pregnant with his child, who had threatened to leave him  that he was no
    longer dealing in drugs. The appellant also submits that the trial judge erred
    when he failed to analyse the factors relating to threshold reliability in the
    context of the narrator, the deceaseds fiancée, whose reliability was
    seriously compromised on the evidence.

[47]

However, the trial judge was alive to the issue of whether the deceased had
    a motive to lie to his fiancée. He dealt with it at length in his admissibility
    ruling. He noted that the statements were spontaneously volunteered and not
    made by the deceased in response to any queries by his fiancée or because he
    was required to offer any explanation to her about his conduct. In the end, the
    trial judge concluded that the deceased would not have had a motive to concoct
    an interaction with the appellant and a story about being asked to sell drugs,
    when such a story would only fuel his fiancées suspicions. These findings were
    open to him on the evidence.

[48]

In submitting that the trial judge erred by failing to consider the
    unreliability of the deceaseds fiancée (the narrator) in his analysis of the
    threshold reliability, the appellant relies on an excerpt from this Courts
    decision in
R. v. Humaid
(2006), 81 O.R. (3d) 456 (C.A.), leave to
    appeal to S.C.C. refused, [2006] S.C.C.A. No. 232.  In that case Doherty J.A.
    said, at para. 57:

There is one
caveat
to what I have said. A trial judge
    has a residual discretion to exclude evidence where its potential probative
    value is exceeded by the potential prejudicial effect of that evidence. This
    discretion extends to what would otherwise be admissible hearsay evidence. There
    may be cases where the credibility or reliability of the narrator of the
    out-of-court statement is so deficient that it robs the out-of-court statement
    of any potential probative value. In such cases, and I think they would be
    relatively rare, a trial judge could conclude that the narrators evidence was
    so incredible or unreliable as to necessitate the exclusion of the evidence
    based on the exercise of his or her residual discretion. [Citations omitted.]

[49]

I make three observations about this statement.

[50]

First, the passage cited provides a
caveat
to what was said
    earlier in the reasons. What was said earlier in the reasons was that the trial
    judge in
Humaid

had erred in excluding
the
    statement on the basis that the credibility of the narrator was relevant to the
    threshold reliability analysis under the principled exception to the hearsay
    rule.
[2]
The general principle is that where, as here, the narrator of the hearsay
    statement is available for cross-examination at trial, the narrators
    credibility is a matter that usually can be left safely to the trier of fact to
    consider:
Blackman
, at paras. 50-51;
Humaid,
at paras. 50-51;
R. v. Duguay
, 2007 NBCA 65, 320 N.B.R. (2d) 104, at paras. 48 and 53.

[51]

Secondly, the circumstances giving rise to the application of the
Humaid
    caveat
[will] be relatively rare. Thirdly, whether to give effect to the
    principle is a matter for the exercise of the trial judges residual
    discretion.

[52]

Here, the trial judge was not asked by defence counsel to exercise his
    residual discretion and to apply the
Humaid caveat
. In his factum and
    oral submissions on the
voir dire
, Crown counsel relied on
Humaid
and
Blackman
to argue that the reliability of Richards testimony should
    be left to the jury. Defence counsel did not respond, except to say that he
    appreciate[d] the Crowns submission that discrepancies in the narration of
    the statement may be addressed by  cross-examination of Ms. Richards. Instead,
    defence counsel focussed on the reliability of what the deceased had actually
    said and the difficulties arising from the fact that the deceased was not alive
    to be cross-examined. The trial judge might be forgiven for not having
    specifically directed his mind to the
Humaid

caveat
in such
    circumstances.

[53]

Nor, in my view, would the circumstances have justified him in applying the
Humaid caveat
in any event. The deceaseds fiancée was available for
    cross-examination at trial but she did not testify on the
voir dire
. At
    the time of his ruling, then, the trial judge had only the transcript of her
    evidence at the preliminary inquiry to consider.
Viva voce
testimony
    need not be the only mode of proof on a
voir dire
.  However, it would
    be an exceedingly rare case, in my opinion, where, without the opportunity to
    see and hear the narrators testimony, a trial judge would be in the position
    to rely on the
Humaid

caveat
and make a no probative value
    finding  based on the narrators lack of credibility  to exclude the
    statement. This is not one of those cases.

[54]

The deceaseds fiancée was effectively cross-examined at trial and the
    issues relating to the ultimate reliability of her testimony were adequately
    dealt with in the clear mid-trial instruction and in the final instructions
    given by the trial judge. Amongst other things, the jurors were told that they
    should look at her demeanour and the circumstances in which the statements took
    place and at anything else that makes [her] story more or less believable;
    that her evidence in this regard may be less reliable than the evidence given
    by others; and that they should consider whether she would have any reason to
    make up the story about what Andrew Christie said.

[55]

All the evidence relating to the firearms, ammunition and drug
    paraphernalia found by the police in the apartment after the shooting, and how
    much she was or wasnt aware of those items, was canvassed during the charge to
    the jury. Both the Crowns concession that her disavowal of knowledge of the
    drugs and weapons in the apartment may be found to be less compelling and its
    position that a person in her position might be understandably concerned about
    potential criminal consequences (thereby giving rise to a motive to lie) were
    made clear to the jury. As was the defence position that her evidence
    disavowing such knowledge and the knowledge that the deceased was a drug dealer
    was completely unbelievable.

[56]

In the face of all this, it cannot be said that the jurors would be
    unaware of the need to probe whether the deceaseds fiancée had a motive to lie
    and of the need to consider the reliability and believability of her evidence
    carefully.

[57]

The deceaseds
ante-mortem
statements were properly admitted
    into evidence and the jury was adequately instructed on the issues surrounding
    the ultimate reliability of his fiancées testimony.

Jury Charge

(1)

Post-Offence Conduct

[58]

The Crown sought to adduce evidence that the appellant had flown the
    scene and evaded arrest for 18 months as post-offence conduct relevant to the
    issue of self-defence. Defence counsel ultimately conceded that the evidence
    was relevant to that issue, but to that issue alone. The trial judge ruled that
    the Crown could lead the evidence but that its use would be limited to
    determining whether the homicide was culpable (i.e., whether the defence of
    self-defence had been made out), and that it was not relevant to determining
    the level of culpability (first degree murder, second degree murder, or manslaughter).

[59]

The appellant then testified that he had fled and an agreed statement of
    facts was read in regarding the post-offence conduct.

[60]

On appeal, the appellant concedes that the trial judge properly charged
    the jury on post-offence conduct by telling the jurors that the post-offence
    conduct could not be used to prove state of mind, planning and deliberation or
    to disprove provocation. His complaint is that, when the trial judge instructed
    the jury on state of mind itself, he invited the jurors to consider 
all
of the evidence on several occasions, without
    re-cautioning them about the irrelevance of the post-offence conduct with
    respect to the appellants state of mind. This failure undermined the earlier
    admonition not to use that evidence on the issue of intent, the appellant says.

[61]

I do not find this argument persuasive.

[62]

The trial judge instructed the jury that:

Evidence of what Mr. Berry did after the shooting may or may
    not help you decide whether he caused Mr. Christies death unlawfully.  It may
    or may not help you decide whether the Crown has proven beyond a reasonable
    doubt the accused was not acting in self-defence and the killing was unlawful.



The after the fact conduct cannot be used by you to determine
    whether the Crown has proved that the accused had the state of mind for murder,
    that Mr. Berry was not provoked, and that the killing was both planned and
    deliberate.

[63]

These instructions were clear, specific and direct. They left no room
    for confusion. Moreover, the trial judge did not simply direct the jury to
    consider all of the evidence in his state of mind instruction. He carefully
    limited the instruction by telling the jurors  to take into account all of the
    evidence
that throws light on [the appellants] state of
    mind
at the time the offence was committed (emphasis added). This
    qualified instruction was given at least twice during this portion of the
    charge.

[64]

The jury had been told, clearly, before this that the post-offence
    conduct could not be considered in determining the appellants state of mind. They
    would have understood equally clearly that such evidence was not part of all
    of the evidence that throws light on [the appellants] state of mind. Post-offence
    conduct evidence had already been excluded from that category.

[65]

There was no error in the trial judges charge to the jury on this
    point, in my opinion.

(2)

Self-Defence

[66]

At trial the defence requested a modified reasonable person charge with
    respect to the elements of self-defence. Counsel asked the trial judge to instruct
    the jurors that in considering the response of a reasonable person in such
    circumstances  as well as when considering the appellants actual subjective
    state of mine  they were entitled to take into account Dr. Pollocks evidence
    regarding the appellants diminished intelligence and his particular
    psychological complexion.

[67]

Defence sought this instruction on the basis that Dr. Pollocks evidence
    showed the appellants diminished intelligence may have caused his excitable
    and distrustful personality which, in turn, contributed to his perceptions and
    reactions during the events. How the reasonable person would have reacted must
    therefore be viewed through the lens of a person bearing these similar
    characteristics, the argument went.

[68]

After reviewing this Courts decision in
R. v. Nelson
(1992), 8
    O.R. (3d) 364 (C.A.), the trial judge agreed to charge the jury on the basis
    that the jurors were entitled to consider both the appellants diminished
    intelligence and his psychological makeup on the issue of the appellants
    subjective state of mind, in relation to self-defence, and that they could
    consider his diminished intelligence but not his psychological makeup as part
    of the objective test. His charge reflected this decision.

[69]

The appellant submits the trial judge erred by refusing to permit the
    jury to consider those aspects of the appellants personality or psychological
    makeup that were affected by his diminished intelligence as part of the
    objective component of the analysis, thereby undermining the appellants
    defence of self-defence.

[70]

I would not give effect to this submission.

[71]

First, from an evidentiary point of view, I am not satisfied that Dr.
    Pollocks testimony established a sufficient causal connection between the
    appellants border-line IQ/modest intelligence (5
th
percentile),
    and the appellants personality characteristics the defence sought to highlight
    as possible explanations for his reaction (being anxious, excitable,
    distrustful of others), to support the submission that the appellants
    diminished intelligence affected his personality traits. Dr. Pollock
    acknowledged that, while an intelligence test provides an indication of what a
    persons optimal level of functioning is, under clinical observations, how a
    person applies their intelligence in day-to-day life when theyre confronted
    with problems  or stressful circumstances may be another thing and that is
    determined more by an individuals personality.

[72]

Both for these reasons and on a broader basis, I am not persuaded that
    the trial judge was wrong, in the circumstances of this case, in excluding the
    evidence of the appellants individual personality traits from the objective
    portion of the analysis. The authorities have held that a condition of arrested
    intelligence or a mental condition may be taken into account by the trier of
    fact in a self-defence analysis: see, for example,
Nelson
(arrested
    intellectual and mental development caused by a motor vehicle accident);
R.
    v. Kagan
, 2004 NSCA 77, 224 N.S.R. (2d) 118 (Aspergers syndrome, a mental
    condition);
R. v. Lavallee
, [1990] 1 S.C.R. 852 (battered-wife
    syndrome). The underlying rationale of authorities like
Nelson
and
Kagan
is that the accuseds faculties were diminished through no fault of their own
    in a way that took the impairment out of the broad band of normal adult
    intellectual capacity (
Nelson
, at p. 383). While
Lavallee
may be somewhat different, similar considerations were in play.

[73]

There is nothing in the appellants psychological makeup here to
    indicate that his particular traits are attributable to something beyond his
    control. In order to satisfy the third element of self-defence under s. 34(2)
    of the
Criminal Code
, the appellants belief that he had no other
    option but to shoot the deceased must be objectively reasonable;
R. v.
    Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 121. To permit the
    appellant to rely on the psychological makeup he puts forward here as an
    explanation for his actions would improperly conflate the subjective and objective
    components of the test. As Doherty J.A. observed in
R. v. Pilon
, 2009
    ONCA 248, 247 O.A.C. 127, at para. 75:

To do so would be to effectively eliminate the reasonableness
    requirement from the defence of self-defence.  Instead of reflecting community
    values and the community perception of when a killing is justified,
the validity of the self-defence justification would [lie]
    entirely in the eye of the killer
. A law of self-defence that justified
    what would otherwise be murder entirely on the basis of the accuseds personal
    belief as to the need to kill to save himself would constitute a stunning
    devaluation of the rights to life and security of the person to which all members
    of the community are entitled. [Emphasis added.]

[74]

The trial judge expressed a similar sentiment here. I would not
    interfere with his decision to exclude from the jurys consideration under the
    objective component of the s. 34(2) test the evidence relating to the
    appellants particular psychological makeup.

(3)

Provocation

[75]

Under s. 232 of the
Criminal Code
, homicide that would otherwise
    be murder may be reduced to manslaughter if the person who committed it did so
    in the heat of passion caused by sudden provocation. There are two essential
    components to the requirements of s. 232, as Charron J. explained in
R. v.
    Tran
, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 23  one objective, the
    other subjective.  Citing with approval the statement of Cory J. in
R. v.
    Thibert
, [1996] 1 S.C.R. 37, she said:

In my view, the requirements of s. 232 are most usefully
    described as comprising two elements, one objective and the other subjective. 
    As Cory J. for the majority of the Court put it in
Thibert
:

First, there must be a wrongful act or insult of such a
    nature that it is sufficient to deprive an ordinary person of the power of
    self-control as the objective element.  Second, the subjective element requires
    that the accused act upon that insult on the sudden and before there was time
    for his passion to cool.

[76]

In this case, the act relied on as provocation was the hallway incident
    that took place between 15 and 45 minutes before the shooting and during which the
    deceased put a gun to the appellants neck.

[77]

The trial judge instructed the jury that, in general terms, provocation involves
    a loss of control in response to a wrongful act or insult by the deceased
[3]
,
    and that it is a concession to human frailty, but one that is subject to
    certain specific requirements. He directed the jurors to assess the evidence in
    relation to the
Tran
/
Thibert
criteria  although dividing
    them into four questions instead of two  through the lens of both an ordinary
    person test (the objective component) and an accused person test (the
    subjective component).

[78]

In applying the accused person test  i.e., in tackling the suddenness
    of the reaction and whether the appellants passion had time to cool  the trial
    judge told the jurors they could consider the appellants individual characteristics
    and personal reaction (i.e., both his intellectual limitations and his
    particular psychological makeup as characterized by Dr. Pollock). But in
    applying the ordinary person test  i.e. whether the wrongful act or insult was
    sufficient to deprive the ordinary person of the power of self-control  the
    trial judge told them they could not do so.

[79]

The appellant contends that the evidence of the appellants intellectual
    limitations and of his insecurities and general distrust of people was
    important to provide the context for the ordinary person inquiry, without the
    over individualization of that inquiry and therefore should have been left
    with the jury on this issue.

[80]

I do not accept this submission.

[81]

In the circumstances of this case, the evidence pertaining to the
    appellants intellectual capacity and his psychological makeup was not
    necessary to contextualize the wrongful act or insult for the jury in the
    ordinary person analysis. It went simply to the appellants individual personal
    characteristics. The trial judge provided the appropriate contextualization
    when he told the jury:

In this case, an ordinary person would be someone of the same
    age and sex as Mr. Berry who shares with him those other characteristics that
    would give the wrongful act or insult special significance in the
    circumstances.  The ordinary person would also be one who has experienced the
    same series of acts or insults as Mr. Berry and shares the past history and
    relationship between Mr. Berry and Andrew Christie.

An ordinary person is not exceptionally excitable or disposed
    to fight and has and exercises those powers of self-control that all of us
    expect our fellow citizens to exercise in our society today.

[82]

Defence counsel did not object to this portion of the charge.

[83]

Although the appellant relies on
Tran
for his submission,
    Charron J. was particularly careful in that case to emphasize that care must
    be taken not to subvert the logic of the objective test because if all of the
    accuseds characteristics are taken into account, the ordinary person
becomes
the accused (para. 33; emphasis in original).  She concluded her analysis by
    saying:

Personal circumstances may be relevant to determining whether
    the accused was in fact provoked  the subjective element of the defence  but they
    do not shift the ordinary person standard to suit the individual accused. In
    other words, there is an important distinction between contextualizing the
    objective standard, which is necessary and proper, and individualizing it,
    which only serves to defeat its purpose.

[84]

Without concluding that there can never be a situation where diminished
    mental capacity may be relevant to the ordinary person inquiry in the
    provocation analysis, I am satisfied that the trial judge did not err on this
    record by excluding from that inquiry in this case the evidence of Dr. Pollock
    regarding the appellants intellectual limitations and his personal
    psychological makeup.

[85]

I would not give effect to this ground of appeal.

Sentence

[86]

In my view, the trial judge did not err in imposing a 17-year period of
    parole eligibility in the circumstances of this case.

[87]

Defence counsel sought a period of parole ineligibility of between 12
    and 15 years; the Crown requested 18 to 20. The trial judge had non-binding
    recommendations from eight jurors ranging from 10 to 25 years (four jurors made
    no recommendations).

[88]

The appellant was a young man (20) at the time of the offence and had
    had a difficult youth and upbringing. He is a person of modest intelligence. 
    Nonetheless, the appellant has a record of continuing violence both as a youth
    and as an adult, including convictions for robbery, a conviction for assault
    with a weapon and the imposition of a firearms prohibition. Those acts of
    violence were not deterred by his prior incarcerations. The trial judge was
    entitled to view the offence as a near first degree murder in spite of the
    jurys acquittal on the charge of first degree murder.

[89]

The appellant submits that the trial judge erred by double counting
    this aggravated nature of the offence in his consideration of the appropriate period
    of parole ineligibility.

[90]

I disagree.

[91]

While the trial judge did reference the nature of the offence twice in
    his consideration of the aggravating factors, he did so in two different
    contexts. The first related to what he saw as the planning elements of the
    shooting; the second, to the execution nature of the shooting. Both
    considerations were open to him. Having found that there were elements of planning
    in the way in which the appellant armed himself, elicited the aid of Jovanovski,
    and then concealed himself at the side of the door preparatory to carrying out
    the attack, the trial judge was not precluded from considering the number and
    location of the gun-shot wounds on the deceaseds body and concluding that the
    shooting could also be characterized as a brutal execution.  Both these
    features of the crime were compelling aggravating factors as were others,
    including the use of an illegal firearm when the accused was subject to a
    firearms prohibition order.

[92]

The 17-year period of parole ineligibility imposed here was entirely
    fit, in my view. In any event, the trial judges decision as to sentence is
    entitled to considerable deference, and, there being no error in law or
    principle, I see no basis for interfering with it: see
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089.

Disposition

[93]

For the foregoing reasons, I would dismiss the appeal.

[94]

I would grant leave to appeal sentence but dismiss the sentence appeal
    as well.

Released: January 12, 2017

Robert A. Blair J.A.

I agree J.C.
    MacPherson J.A.

I agree David Watt
    J.A.





[1]

R. v. Vetrovec
, [1982] 1 S.C.R.
    811.



[2]
Doherty J.A. arrived at this conclusion on two bases: (i) that the narrators
    credibility did not form part of the circumstances surrounding the making of
    the statements (see
R. v. Starr
, 2000 SCC 40, [2000] 2 S.C.R. 144);
    and, (ii) that, on a principled basis, the narrator was available at trial for
    cross-examination and issues regarding her credibility could safely be left to
    the trier of fact.  In
R. v. Blackman
, 2008 SCC 37, [2008] 2 S.C.R.
    298, Charron J. noted that the first of these grounds had been overtaken by the
    Supreme Court of Canadas decision in
R. v. Khelawon
, 2006 SCC 57, [2006]
    2 S.C.R. 787, but held that the second basis for the decision in
Humaid
remained valid.



[3]

Although nothing turns on it for purposes of the analysis on
    the appeal, this case is governed by the definition of what constituted
    provocation as set out in the former s. 232(2) of the
Criminal Code
that was repealed and replaced by the current s. 232(2) on July 17, 2015. Hence
    the reference to wrongful act or insult.


