




CITATION: R. v. Cornelius, 2011
          ONCA 551



DATE: 20110810



DOCKET: C49484



COURT OF APPEAL FOR ONTARIO



Rosenberg,
Juriansz
and
LaForme
JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Donny Cornelius



Appellant



Jill R. Presser, for the appellant



Lucy Cecchetto, for the respondent



Heard: April 6, 2011



On appeal from conviction entered by Justice D. Little of the
          Superior Court of Justice, sitting with a jury, on November 30, 2007.



Rosenberg J.A
.
:

[1]

The appellant appeals his conviction for second degree
    murder and for a number of firearms offences by a court composed of Little J.
    and a jury.  The appellant submits that
    the trial judge did not adequately direct the jury in a number of respects
    concerning after the fact conduct, the evidence in support of the defence, the mental
    elements for murder and manslaughter and the elements of the firearms offences.

[2]

For the following reasons, I would dismiss the appeal

THE FACTS

[3]

On December 13, 2005, the deceased, Jeff Davis, was
    shot to death outside his friends townhouse.  The principal issue at trial was whether the appellant or his neighbour
    Justin Antonucci fired the fatal shots.  Both testified and each claimed that the other brought the gun to the
    scene of the shooting and fired the fatal shots.

[4]

Antonucci and Davis worked together at a roofing
    company.  The altercation that led to the
    death of the deceased had its origin in a dispute over a $40 drug debt that
    Antonucci owed to Davis.  Following the
    company Christmas Party, Antonucci, Davis and others went to the townhouse of Kelly
    Tardiff, a fellow employee.  The people
    at the townhouse were drinking and consuming drugs and in the course of the
    evening, Davis became increasingly belligerent towards Antonucci over the drug
    debt.  Eventually, he left the room and
    Antonucci and his girlfriend left the townhouse.

[5]

When Antonucci arrived back at his apartment building his
    girlfriend went into his unit.  Antonucci
    went over to the neighbouring unit, where the appellant lived and was invited
    in.  Antonucci told the appellant that he
    had been in a fight over a drug debt.  There was a dispute about Antonuccis purpose in going to the
    appellants home.

[6]

There was some dispute about whether Antonucci asked
    the appellant for money to repay Davis and whether he asked the appellant to
    accompany him back to Tardiffs home.  In
    any event, the appellant and his girlfriend Melissa Henry, Antonucci, and two
    of their acquaintances Michael Hicken and Tyler Pangborn, returned to the
    Tardiff home in Hickens fathers car.  When they reached the Tardiff home, Hicken and Pangborn remained in the
    car while the appellant and Antonucci headed towards the home.  According to the appellant, as they
    approached the home Antonucci pulled out a gun and said that if things get out
    of hand he had this.  The appellant
    demanded that Antonucci give him the gun.  He did so and the appellant put the gun in his pocket.  Antonucci denied that he ever had a gun.

[7]

While there were some discrepancies among the various
    witnesses as to what happened next, it is sufficient for the purposes of this
    appeal to set out the two competing versions, one favouring the appellants
    theory that Antonucci killed the deceased and the other version that it was the
    appellant who killed the deceased.  There
    was some evidence supporting both versions, in addition to the testimony of the
    appellant and of Antonucci.

[8]

The appellant and Antonucci approached the Tardiff
    residence. Antonucci knocked on the door and Davis came out moments later.  After some kind of confrontation with
    Antonucci, he approached the appellant and asked Antonucci if the appellant was
    his heavy.  According to the appellant,
    he started to panic as Davis approached.  He pulled out Antonuccis gun and fired a warning shot into the
    ground.  Davis kept charging at him and
    began to punch him.  The appellant
    attempted to protect himself as Davis punched him.  The appellant dropped the gun as he fell into
    a snowbank.  He saw Antonucci run up, pick
    up the gun and shoot Davis three times.  Antonucci testified that he never picked up the gun; rather the
    appellant fired the warning shot and then fired three more shots into
    Davis.

[9]

None of the people who came with the appellant and
    Antonucci or from the Tardiff home testified to seeing who fired the shots into
    Davis.  There was one independent witness
    who did see the shooting.  Tardiffs
    next-door neighbour, Heather-Anne Ference, described the confrontation in a way
    that indicated that the appellant was the shooter of both the warning shot and
    the three fatal shots.  However, in
    cross-examination, her evidence became somewhat confused and the appellant
    submits that her description of the shooters clothing more closely resembled
    the clothing worn by Antonucci.

[10]

After the shooting, Antonucci and the appellant ran back
    to the car and Hicken drove them back to the appellants apartment.  All four men and the appellants girlfriend entered
    the appellants apartment.  According to
    the appellant, Antonucci told him not to say anything about the shooting.  According to Antonucci, the appellant
    threatened to harm Antonuccis daughter and girlfriend if he said anything to
    the police.  He saw the appellant put the
    gun in his safe.  The appellant denied
    this.  After Antonucci and Hicken left
    the appellants apartment, the appellant and Pangborn packed up the contents of
    the safe to take to his mothers house on the Oneida reserve.  According to the appellant, the safe only
    contained some marijuana and $3500.  According to Pangborn, they also packed up a gun, which looked like the
    gun from the shooting.  Pangborn
    testified that he had seen a gun at the appellants apartment on an earlier
    occasion.  The appellant explained that
    he took the items out of his apartment because he assumed the police would be
    coming as a result of the shooting and he did not think it would look good for
    them to find the marijuana and cash.

[11]

Antonucci testified that the following day, the
    appellant told him to burn his clothes.  The appellant denied this and testified that in fact Antonucci told him
    to get rid of his clothes.  Upon his
    arrest, the appellant gave a statement to the police in which he denied being
    at the scene of the shooting.  At trial,
    he testified that he lied because he was scared and had agreed with Antonucci
    not to give evidence against him.  For
    his part, Antonucci also lied to the police and originally identified an
    innocent person as the shooter.

[12]

Gunshot residue was found on the appellants and
    Antonuccis clothing.  It was not
    possible to know whether the residue was from holding the gun or being near to
    it when it was discharged.  The deceased
    suffered three gunshot wounds: one in the neck, chest and thigh. The gunshot
    wound to the neck was fatal.

THE GROUNDS OF APPEAL

[13]

The appellant raises the following grounds of appeal:

(1)

Misdirection with respect to post-offence conduct.

(2)

Failure to accurately summarize the evidence in support
    of the defence in the charge to the jury.

(3)

Misdirection with respect to the mental element for
    murder.

(4)

Misdirection with respect to the fault requirement for manslaughter.

(5)

Misdirection with respect to the weapons offences.

(6)

Failure to leave the defence of accident.

ANALYSIS

(1)       Misdirection
    with respect to post-offence conduct

[14]

There were significant pieces of post-offence conduct
    that the Crown relied upon to prove that the appellant had fired the fatal
    shots.  Depending upon the version of
    events accepted by the jury, that evidence included the flight from the scene,
    threats to Antonucci, disposal of the gun and the lies to the police.  The charge to the jury specifically dealing
    with post-offence conduct was brief:

Look at the evidence in this case that happened
    after the shooting, evidence of what a person did or said after the
    offence.  What Mr. Cornelius did, things
    like allegations that he threatened Justin [Antonucci], allegations that he
    disposed of items and so on, may indicate that it is what a person would do if
    they were guilty but it may not.  It may
    be consistent with a person who has committed the offence and inconsistent with
    the evidence of someone who did not, or there may be an explanation for it and
    in this case, Cornelius gave an explanation for the trip to the reserve and as
    I recall, he denied any threats.

[15]

In reviewing the appellants testimony, the trial judge
    touched upon the gun, noting that the appellant denied taking the gun back to
    his apartment.  He did not otherwise deal
    with the post-offence conduct.

[16]

The appellant submits that the charge to the jury
    concerning after-the-fact conduct was deficient in failing to explain:

·

the need to be cautious about drawing
    incriminatory inferences from such conduct;

·

the need to decide whether the conduct even
    occurred;

·

the need to consider alternate innocent
    explanations such as panic, fear or embarrassment;

·

the need to consider whether the conduct was
    referable to some other offence such as handling the gun or commission of drug
    offences;

·

the need to consider whether the conduct was
    referable only to culpability for the homicide, not murder.

[17]

While the appellant submits that the level of
    culpability was an issue in this case, i.e. whether the appellant was guilty of
    murder or manslaughter, the principal issue was whether the Crown proved that
    the appellant had fired the three fatal shots.  The appellant admitted firing the warning shot, in self-defence, but
    testified that it was Antonucci who fired the fatal shots.  The Crowns case was that it was the
    appellant that fired all of the shots, including the fatal shots.  The only items left to the jury by the trial
    judge on the issue of identity, or as the trial judge put it, may be
    consistent with a person who has committed the offence, were the threats to
    Antonucci and the disposal of the items.  None of the other potential pieces of evidence were left to the jury as
    post-offence conduct.  This is not
    surprising given that Antonucci also fled the scene and lied to the police.

[18]

The most recent decision from the Supreme Court of
    Canada on the directions to be given to the jury in cases where there is
    evidence of post-offence conduct is
R. v.
    White
(2011), 267 C.C.C. (3d) 452.  While there were three sets of reasons, the main issue dividing the
    members of the court was the application of the law to the particular set of
    facts.  As I read the decision, there was
    little dispute as to the legal principles.  The point that principally divided the members of the court was the use
    to be made of demeanour evidence as potentially giving rise to an inference of
    consciousness of guilt.  That issue does
    not arise in this case.

[19]

The principles relevant to this case were set out by
    Binnie J., writing for himself and McLachlin and Fish JJ.  While he was in dissent, Binnie J.s analysis
    of the legal principles was adopted by Charron J. writing for herself and
    Deschamps J.  For the purposes of this
    case, the important points are set out in paragraphs 137 to 140 of the reasons
    of Binnie J.  Charron J. expressed her
    agreement with those principles at paragraphs 105 and 107 of her reasons.  I would summarize the applicable principles
    as follows:

1.         It
    is not the case that anything done by an accused after the offence is subject
    to a special warning.

2.         The
    general rule is now, as in the past, that it is for the jury to decide, on the
    basis of the evidence as a whole, whether the post-offence conduct put in
    evidence against the accused is related to the commission of the crime before
    them rather than to something else, and if so, how much weight, if any, such
    evidence should be accorded in the final determination of guilt or innocence.
    For the trial judge to interfere in that process will in most cases constitute
    a usurpation of the jury's exclusive fact-finding role: para. 137.

3.         However, there may be cases where a
    warning is required because jurors may attach more weight to the post-offence
    conduct than is warranted.  This risk
    exists with respect to some types of post-offence conduct relied upon by the
    Crown and in those cases it only makes sense for the judges to alert the jurors
    to what the courts have collectively learned over the years, especially when
    that learning may for some jurors be counter-intuitive: para. 138.

4.         However,
    the bulk of so-called post-offence conduct will simply flow into the record as
    an unremarkable part of the narrative: para. 140.

5.         Like
    all other circumstantial evidence, evidence of post-offence conduct will be
    relevant and admissible depending on whether it has some tendency as a matter
    of logic, common sense, and human experience... to help resolve the issues in
    the case: para. 140.

[20]

In my view, the two items of evidence left to the jury in
    this case did not require a special caution.  The threats to Antonucci and removing the items for the safe do not fall
    within the category of evidence, like the flight evidence considered in
White
, where there was a risk that the
    jury would give it more weight than warranted, or as it was expressed by
    Rothstein J. at para. 23, the risk that the jury would jump too quickly from
    evidence of post-offence conduct to an inference of guilt.

[21]

I begin with the threats to Antonucci.  The appellants position on this issue was
    simple and straightforward.  He denied
    making the threats and, to the contrary, claimed that it was Antonucci who
    advised him to get rid of his clothing.  There was nothing remarkable about this evidence.  So far as the appellant knew, only he and
    Antonucci were witnesses to the shooting.  If he threatened Antonucci it was for only one purpose, to persuade
    Antonucci to cover-up for him.  This was
    the kind of evidence that could be safely left to the jury members to use their
    own experience and common sense to decide what weight to attach to it.

[22]

The removal of the items from the safe to hide them at
    the appellants mothers reserve falls within a similar category.  I begin with the appellants version.  The appellant testified that he took the money
    and the marijuana from the safe because he was concerned that the police would
    come to his apartment and it would not look good.  It might have been helpful had the trial
    judge reminded the jury of this explanation, but this case did not turn on the disposal
    of the marijuana and the money.  The real
    issue was the disposal of the gun.  And,
    the probative value of the evidence concerning the gun turned not on any
    inference of consciousness of guilt, but simply on whether the appellant had
    the gun in his possession after the shooting.  Again there was no risk that the jury would place undue emphasis on the
    question of disposal of the gun.  Their
    attention would be focused on the evidence of Pangborn, Antonucci and the
    appellant.  If the appellants version of
    the shooting was correct, he would not have had possession of the gun after the
    killing.  If Antonucci and Pangborn were
    telling the truth, and the appellant had possession of the gun, this was highly
    probative evidence supporting an inference that he had shot the deceased.

[23]

In my view, this was one of those cases, possibly rare,
    where no special cautionary instructions were required to enable the jury to
    properly deal with the post-offence conduct.  This evidence could be dealt with like the other circumstantial evidence
    in the case, leaving it for the jury to draw what inferences they thought
    proper.

[24]

I am also satisfied that this is not a case where it
    was necessary to instruct the jury expressly that this evidence could be
    relevant only to culpability for an unlawful homicide, not murder.  In the brief passage dealing with the
    post-offence conduct, the trial judge simply told the jury they could consider
    the evidence to decide whether it was consistent with a person who has
    committed the offence.  The passage
    about this evidence almost immediately followed the trial judges
W.D.
instruction where the trial judge
    reminded the jury that the appellant had testified and denied that he shot and
    killed the deceased.  The jury would not
    have had any difficulty understanding that the purpose of this evidence was to
    identify the killer.

[25]

I would not give effect to this ground of appeal.

(2)       Failure to accurately
    summarize the evidence in support of the defence in the charge to the jury

[26]

The appellant submits that the trial judge erred in
    failing to fully and accurately summarize the evidence favouring the defence in
    two respects: (1) the evidence of Heather-Anne Ference, the next-door neighbour,
    and (2) Tyler Pangborns evidence about the gun being removed from the safe.

[27]

The complaint about Ms. Ferences evidence turns on her
    description of the clothing worn by the shooter.  The appellant submits that the trial judge
    erred in failing to instruct the jury that Ms. Ference testified that the
    shooter was wearing a white shirt under a dark jacket.  According to the appellant, this was a
    significant omission because several witnesses testified that Antonucci was
    wearing a white shirt under a grey ski jacket whereas the appellant was wearing
    a red hooded sweatshirt.  In their
    submissions, counsel carefully reviewed Ms. Ferences evidence.  Having considered those submissions and
    reviewed Ms. Ferences testimony I am not satisfied that the trial judge erred.

[28]

Central to the appellants submission is the assertion
    that Ms. Ference described the shooter as wearing a white shirt.  To appreciate the nature of this submission,
    I need to expand somewhat on Ms. Ferences evidence as to what occurred that
    night.  She had gone to bed in her
    bedroom on the second floor of her house, which was next door to the Tardiff
    residence.  At some point, her attention
    was attracted by a noise like a door slamming.  She looked out the window and down onto the scene.  In her description of the events she referred
    to the three people she saw as A, B and C.  A is obviously the deceased.  She
    described A coming out of the house and confronting B who was directly in front
    of him, with C being over to the side.  B
    backed up towards a snow bank as A moved forward.  By this time she had lost track of C.  She then saw B bring his left hand up and she
    heard a bang and saw a flash.  As hand
    went up to his face and then there was another shot and A grabbed his stomach.  There was a third shot and A tried to run
    back to the Tardiff residence but he collapsed.  Ms. Ference immediately called 911.  She next saw C in a car apparently gesturing
    at B to come to the car.  B headed
    towards the car and at one point bent down and picked something up.

[29]

In examination-in-chief, Ms. Ference described B (the
    shooter) as having a pretty-boy haircut meaning messy on top and short on the
    sides.  He was wearing a black leather
    jacket, but not your typical jacket, it was more like a denim jacket with no
    collar and a zipper, with a light or light blue shirt underneath and some
    dark pants. Later, she also described the shirt as the white shirt, or the
    light blue, like it was a light coloured shirt. She was unable to give much of
    a description of C as she really wasnt paying attention to him.

[30]

In cross-examination, trial counsel for the appellant
    used diagrams to try to understand Ms. Ferences evidence.  It is in the use of these diagrams that the
    descriptions become a little more confusing.  Counsel put to Ms. Ference an exhibit from the preliminary inquiry in
    which she also used A, B and C but B at the preliminary was C at the trial and
    C at the preliminary was B at the trial.  To make the evidence less confusing, counsel had Ms. Ference mark a new
    exhibit in which the shooter is described as white shirt.  However, Ms. Ference maintained her
    description of the shooter as wearing a leather jacket with a light coloured
    shirt.  She adopted her preliminary
    inquiry evidence that the third person was wearing a jacket and a pair of
    jeans, which she described as darker clothes.  She also described the shooter as having a darker complexion than the
    third person.

[31]

The upshot of this evidence is that the shooter had the
    pretty-boy haircut, was of darker complexion than the third person and was
    wearing a dark jacket with a light coloured shirt.  The third person was wearing darker clothes,
    but Ms. Ference did not describe the colour of his shirt.  The jury was in the best position to compare
    the complexions of the appellant and Antonucci.  However, the photographs that were taken of both men shortly after the
    shooting show the appellant having a darker complexion than Antonucci, and his
    haircut matches the description of the shooter; Antonuccis haircut is
    different.  The other point that must be
    made about the photograph is that while the appellant claimed that he was hit
    in the face by the deceased, there is no sign of injury.  Finally, the shooter used his left hand and
    the appellant is left-handed. Mr. Antonucci is right-handed.

[32]

The evidence as to what the appellant and Antonucci
    were wearing is far from clear.  Descriptions of Antonuccis shirt vary from a white shirt to a black and
    white shirt, all black shirt, all white shirt, striped shirt.  The description of the appellants clothing
    was consistent as a red hooded sweatshirt.

[33]

It may be that Antonuccis clothing more closely
    resembled the clothing of the shooter as described by Ms. Ference, but it would
    not be correct to say that she unequivocally testified that the shooter was
    wearing a white shirt.  Thus, the trial
    judge was not required to charge the jury to that effect.  The jury was aware of the competing
    inferences to be drawn from Ms. Ferences evidence from counsels jury
    addresses.  The trial judges review of
    Ms. Ferences evidence was extensive and otherwise accurate, but for one
    matter.  In the charge to the jury he
    described the shooter as having a lighter complexion than the third
    person.  Following an objection from
    Crown counsel and review of the recording of the evidence, the trial judge
    corrected this error.  Defence counsel at
    trial (not Ms. Presser) did not object to the trial judges summary of Ms.
    Ferences evidence even when the issue concerning her description of the
    complexion was raised by Crown counsel.

[34]

The trial judges failure to refer to this single piece
    of evidence about the colour of the shirt of the shooter did not breach his
    duty to fairly put the evidence in support of the defence.

[35]

The complaint about the trial judges treatment of Mr.
    Pangborns evidence about seeing the appellant put the gun in a bag concerns an
    apparent admission by Mr.
Pangborn
that he saw a
    black object rather than a gun put in the bag.  During examination-in-chief, by adopting two
    statements he made to the police, Mr. Pangborn testified that he had seen the
    appellant with a handgun about a month before the shooting.  In the statements, Pangborn described the gun
    in some detail.  He further testified in
    chief that he saw the appellant pack that same gun in the bag along with the
    marijuana before they went to the Reserve.  In cross-examination he was referred to the testimony he gave at the
    preliminary inquiry, where he said that the gun the appellant put in the bag
    was not the one the appellant had shown him earlier.  While he maintained that his testimony at
    trial was correct, he conceded that it could have been a different gun.  He explained that he was not very familiar
    with guns.  Finally, while he stated on
    several occasions that he saw the appellant put a gun in the bag, he somewhat
    qualified that statement in this exchange with defence counsel:

Q.        Now,
    you say, sir, that at some point, you see Mr. Cornelius put a weapon into a
    bag, is that correct?

A.        Yes.

Q.        And
    if I were to suggest to you, sir, that that in fact, is not true and that that
    did not happen, what would you have to say to that?

A.        I
    dont know.

Q.        Well,
    is it possible that you didnt see that?

A.
No, I seen  well, I thought I seen the gun
    put in there.  Like, I see a black object
    put into the bag.



Q.        Now,
    its either you saw that or you think you saw that, so its one or the other.

A.
Okay, I think I seen the gun go into the bag
.

[Emphasis added.]

[36]

The cross-examination continued with a few more
    questions that simply demonstrated Mr. Pangborn was having difficulty
    understanding counsels questions and, in particular, in understanding how he
    was to respond to suggestions made by counsel with which he was to agree or
    disagree.  He did disagree with counsels
    suggestion that he had not seen a gun in the appellants possession on a
    previous occasion.

[37]

In his summary of Mr. Pangborns evidence, the trial
    judge accurately pointed out that Mr. Pangborn conceded in cross-examination
    that the gun he saw the appellant put in the bag may have been different from
    the one he saw on the earlier occasion.  The trial judge did not refer to Mr. Pangborns further concession when
    he referred to a black object being put in the bag.  In my view, the failure to refer to this
    piece of evidence did not deprive the appellant of a fair trial.  It is not at all clear that Mr. Pangborn
    resiled from his earlier and later testimony that he saw a gun put in the
    bag.  In context, this evidence was just
    not critical to the defence case.  Again
    no objection was taken by trial counsel to the trial judges summary of Mr.
    Pangborns evidence.

[38]

I would not give effect to this ground of appeal.

(3)       Misdirection
    with respect to the mental element for murder

[39]

This issue can be dealt with briefly.  On two occasions, in reciting the elements of
    murder as defined in s. 229(a)(ii) of the
Criminal
    Code
, the trial judge told the jury that they had to decide if the
    appellant meant to kill the deceased or meant to cause him bodily harm and knew
    that it was likely that it would kill Davis or [was] reckless as to whether or
    not he died.  The correct instruction
    using the word and instead of or was given before and after the erroneous
    instructions.  More importantly, the
    correct description of the elements of the offence was contained in the
    decision tree, copies of which were given to the jurors during their
    deliberations.  The trial judges mistake
    was harmless in the circumstances.

(4)       Misdirection
    with respect to the fault requirement for manslaughter

[40]

At the request of the defence, the trial judge told the
    jury that they could reach a verdict of manslaughter by two different routes.  The most obvious route was as an included
    offence to murder.  But, the defence also
    wanted manslaughter left to the jury on the theory that the warning shot, which
    the appellant admittedly fired, was an unlawful act that contributed to the
    death, even if it was Antonucci who fired the fatal shots.  The defence then argued that the jury could
    acquit even of manslaughter, on the basis that this unlawful act did not cause
    the death.  This ground of appeal
    concerns this alternative route to manslaughter.

[41]

The appellant submits that in dealing with this
    alternative route to manslaughter the trial judge failed to adequately define
    for the jury the fault element of unlawful act manslaughter.  In my view, there is no merit to this ground
    of appeal.  At trial, there was no
    dispute that shooting a firearm in the direction of an unarmed man was an
    unlawful act for the purpose of grounding liability for manslaughter.  The issue on this theory of manslaughter was
    whether the act of Antonucci in picking up the gun and shooting the deceased
    three times, broke the chain of causation.  The question of whether the shooting of the gun at the unarmed deceased
    in a warning shot was an unlawful act was simply never an issue in the
    case.  Defence counsel, who had requested
    that this theory of liability be left to the jury, raised no objection to the
    directions given.

[42]

Finally, it seems to me that even if the charge was
    deficient, there was no substantial wrong or miscarriage of justice.  The way that the charge to the jury was structured,
    the jury would only reach unlawful act manslaughter based on the warning shot
    if they had concluded that the appellant did not fire the fatal shots.  Having convicted of murder, it is apparent
    that the jury was satisfied beyond a reasonable doubt that the appellant fired
    the fatal shots.

[43]

This is not a case like
R. v. Haughton
, [1994] 3 S.C.R. 516, where the court was unwilling
    to reason back from the jurys verdict convicting of the full offence where an
    included offence was not left to the jury.  As Sopinka J. said in
Haughton
:

The application of s. 686(1)(b)(iii) of the
Criminal Code
, R.S.C. 1985, c. C-46,
    requires the court to consider whether a jury properly instructed could, acting
    reasonably, have come to a different conclusion absent the error.
In applying this test the findings of the
    jury in the case under appeal may be a factor in determining what the
    hypothetical reasonable jury would have done, provided those findings are not
    tainted by the error.
In cases in which an included offence is not left
    with the jury, a conviction by the jury of the more serious offence cannot
    generally be relied on by reason of the fact that it may very well be a
    reaction against a complete acquittal.
There
    is an apprehension that the jury convicted because they had no other
    alternative than acquittal and acquittal was unpalatable.
In this case, the
    jury had an alternative: they could have convicted of manslaughter. It cannot
    be said that it did not do so by reason of the failure to charge them by
    reference to the objective standard of liability with respect to manslaughter.
    In convicting of murder the jury must have found that the appellant had
    subjective foresight of death. It is impossible to hold that they came to this
    conclusion because they were unable to conclude the appellant had subjective
    foresight of bodily harm.  [Emphasis
    added.]

[44]

In my view the jurys verdict was not tainted by the
    alleged error.  In this case, the jury
    had two routes to manslaughter; two bases to avoid the unpalatable choice of a
    complete acquittal.  The complaint here
    really amounts to a submission that it would have been too easy for the jury to
    have convicted of manslaughter.  Since the
    jury convicted of murder, the alleged misdirection respecting the warning-shot
    route to manslaughter was of no moment.

(5)       Misdirection
    with respect to the weapons offences

[45]

This final ground of appeal relates to the summary manner
    in which the trial judge dealt with the weapons offences.  The appellant submits that the trial judge
    directed verdicts of guilty with respect to the weapons offences.  Like the previous ground of appeal, this
    ground of appeal is founded on the theory that the appellant did not fire the
    fatal shots.  The appellants submission
    on these counts rests on the proposition that the appellant did not bring the
    gun to the altercation, that he took the gun from Antonucci to keep the peace
    and that he did not fire the fatal shots.  The appellants own evidence that he drew the gun and fired on the
    unarmed victim coupled with the jurys finding that he fired the three fatal
    shots, renders any possible error of no consequence.

The Defence of Accident

[46]

In oral argument, counsel for the appellant raised a
    further ground of appeal; that the trial judge erred in failing to leave the
    defence of accident.  There are two
    concerns with this ground of appeal.  First, in my view, there is no air of reality to the defence of
    accident.  Second, in any event, based on
    the charge to the jury, if the jury had any doubt that the gun discharged
    accidentally, they would only have convicted of manslaughter.  Given that the jury rejected both routes to
    manslaughter, it can safely be said that the jury had no doubt that the
    appellant intentionally discharged the gun.

[47]

The defence of accident, raised for the first time on
    appeal, is based on the theory that even if the jury accepts that the appellant
    was the shooter of the fatal shots, it is possible that the gun went off
    accidentally as the appellant fought with the deceased.  That defence counsel did not seek to have
    this defence put to the jury is not, of course, fatal to this ground of appeal,
    provided there is an air of reality to the defence:
R. v.
    Mathisen
(2008), 239 C.C.C. (3d) 63 (Ont. C.A.) at para. 93.  However, there is no air of reality to this
    theory; it would require a finding that the gun discharged accidentally three
    times, into the deceased, during the course of this struggle.  It is inconsistent with all of the accounts
    given by all the witnesses, especially the independent witness, Heather-Anne
    Ference.

[48]

Counsel for the appellant relies upon the version of
    events given by Mr. Pangborn and Mr. Antonucci to support an accident defence. However,
    Mr. Pangborn only testified about a struggle before the appellant fired the
    warning shot.  There is nothing in his
    evidence that speaks to the manner in which the three shots that hit the
    deceased occurred. Mr. Antonuccis evidence also does not assist. He testified
    to hearing three shots. The first shot he heard may have been the warning shot.
    In examination in-chief, he testified that the second shot occurred during what
    he described to be a scuffle. But, the third shot went off when the scuffle
    was over and both men were standing. In cross-examination, he testified that
    the last two shots may both have occurred when the two men were standing after
    the scuffle. In fact, defence counsel suggested to Mr. Antonucci that both shots
    were fired when the two men were standing. Mr Antonucci said he was not sure.

[49]

In any event, any doubt that the shots were fired
    accidentally would have translated into a verdict of manslaughter.  The jury was charged that if the appellant
    did not have the intent for murder he could only be convicted of
    manslaughter.  If indeed the jury had a
    reasonable doubt that the appellant discharged the gun three times
    accidentally, he could not have had the intent for murder.

[50]

I would not give effect to this ground of appeal.

DISPOSITION

[51]

Accordingly, I would dismiss the appeal from
    conviction.

Signature:      M. Rosenberg J.A.

I
    agree R. G. Juriansz J.A.

I
    agree H. S.
LaForme
J.A.

RELEASED: MR AUGUST 10, 2011


