





CITATION:
R. v. Cain, 2011
          ONCA 298



DATE: 20110414



DOCKET: C45822



COURT OF APPEAL FOR ONTARIO



Sharpe, MacFarland and LaForme JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Rodney Darren Cain



Appellant



Philip Campbell, Jonathan Dawe and Sean T. MacDonald, for the
          appellant



David Finley, for the respondent



Heard: March 16, 2011



On appeal from the conviction imposed
          by Justice Todd L. Archibald of the Superior Court of Justice, sitting with a
          jury, on June 23, 2006.



By the Court:



[1]

This appeal arises from the shooting and death of Joel
    Willis in 1985.  At his first trial, the
    appellant was convicted of second degree murder and sentenced to life
    imprisonment.  A key Crown witness later
    recanted his original account and the Minister of Justice directed a new trial.
     At the second trial, eighteen years
    after the first, the jury acquitted the appellant of second degree murder but
    convicted him of manslaughter.  The
    appellant was sentenced to one day imprisonment plus time served.  He appeals his conviction to this court,
    having abandoned his sentence appeal.

[2]

The sole defence raised at both trials was
    self-defence.  The appellant admitted to shooting
    the victim in the chest, in a back alley adjacent to an illegal after-hours
    booze can operated by the victim and his brothers in Toronto.  The shooting followed an incident earlier the
    same night involving the victim, the victims brother Lester and the
    appellants brother Martin.  That
    incident was in turn provoked by a dispute between Lester Willis and the
    appellant.  Lester and the appellant were
    fellow drug dealers.  When Lester was
    arrested on drug charges, the appellant promised to help pay his legal fees but
    never followed through.  When the
    appellants brother Martin came to the Willis establishment earlier on the
    night of the shooting, Lester robbed him of drugs and money, apparently to make
    a point to the appellant.  The appellant
    returned shortly thereafter with a loaded handgun.  He told the club doorman, Harold
Howe, that
he wanted to speak to Lester.  When Howe informed the Willis brothers that
    the appellant was outside, Joel Willis armed himself with a wooden bat and
    emerged from the club to confront the appellant.  That confrontation led directly to the
    shooting and death of Joel Willis.

[3]

Harold Howe was the crucial witness at both trials.  At the first trial, he testified that Joel
    Willis had approached the appellant in a non-threatening fashion and that the
    appellant had fired while Willis was standing several feet away and not posing
    any immediate threat.  At the second
    trial, Howe testified that Joel Willis had advanced in an aggressive fashion
    towards the appellant while waiving the bat, and that the appellant drew his
    gun and shot Willis only after Willis had closed the gap between them to a
    short distance and appeared to be about to strike the appellant with his
    upraised bat.  At the second trial, the
    appellant relied heavily on Howes evidence in support of the claim of
    self-defence.  The Crown sought and was
    granted a
KGB
ruling to admit Howes earlier
    evidence from the first trial.  The
    appellant did not testify in his own defence and called no evidence.

[4]

It was common ground at trial and on this appeal that
    the issue of self-defence rested solely on s. 34(2) of the
Criminal Code
:

34(2)
Every
one who
    is unlawfully assaulted and who causes death or grievous bodily harm in
    repelling the assault is justified if

(
a
)
he
causes it under reasonable apprehension of death or grievous bodily harm from
    the violence with which the assault was originally made or with which the
    assailant pursues his purposes; and

(
b
)
he
believes, on reasonable grounds,
    that he cannot otherwise preserve himself from death or grievous bodily harm.

[5]

The appellant concedes that the trial judge delivered a
    model s. 34(2) instruction.  However, he submits
    that the trial judge erred by failing to correct two allegedly improper
    submissions made by Crown counsel in his closing address: 1) the submission
    that the appellant failed to retreat, and 2) the submission that the appellant
    did not fear the victim Joel Willis.

Analysis

1. Did the trial judge err by failing to correct
    Crown counsel's submission to the jury on the issue of retreat?

[6]

The appellant submits that in the following passage
    from Crown counsels closing address to the jury, Crown counsel invited the
    jury to conclude that the appellants failure to retreat during the early
    stages of the confrontation with Joel Willis precluded him from claiming
    self-defence:

Mr. Howe testified that
    it seemed as if Joel took a lot of steps towards the accused.  For every step that Joel took towards the
    accused, the accused backed up a step.
Interestingly, ladies and gentlemen, the
    accused never turned around to leave even according to Mr. Howe.  He never left the parking area.  We know that he had the laneway behind
    him.  We know the configuration.  He has the laneway behind him leading to
    Kenwood Avenue.  It was a clear path of
    retreat.

The only person we
    have heard was behind him and to his side was Joe Patterson.  There is, certainly, no suggestion that on
    that date Joe Patterson was an ally of the Willises.  Given his reason for visiting the club, it
    was more like he was an ally to the accused or Martin Cain.
So we
    have Rodney Cain with a clear path of retreat behind him but [he] chooses to
    retreat slowly, and allow Joel Willis to close the gap.

Perhaps [counsel] for the defence will argue that it would have been
    dangerous for Rodney Cain to turn his back on Joel.
That
    argument might hold some water in the final stages where Joel was fairly close
    to the accused, but what about earlier, earlier on before Joel had closed the
    distance?  Why didnt the accused make a
    genuine retreat at that point?
[Emphasis added.]

[7]

The appellant submits that Crown counsel left the jury
    with the misleading impression that the appellants failure to retreat while
    Joel Willis was still a safe distance away precluded him from later claiming
    self-defence under s. 34(2), even if retreat was no longer a viable option when
    the appellant actually shot Willis.

[8]

The elements of the s. 34(2) defence were recently described
    as follows by Doherty J.A. in
R. v. Craig
,
    2011 ONCA 142, at paras. 33, 36:

In
R.
    v. Pétel
, [1994] 1 S.C.R. 3, at pp. 12-13, the court identified three
    elements to self-defence under s.
34(2)
of the
Criminal Code
:


an
unlawful assault, or at least a reasonable belief by the accused that he or she
    was being assaulted;


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


a
reasonable belief that it is not possible to preserve ones self from harm
    except by killing the perpetrator of the assault.

...

The elements of self-defence in s. 34(2) as
    described in
Pétel
have both a subjective and objective component.  For example, an accused must actually
    apprehend the risk of death or grievous bodily harm.  This is a subjective inquiry into the mind of
    the accused at the relevant time.  That
    apprehension, however, must be reasonable in the circumstances as perceived by
    the accused.  This is an objective
    inquiry that serves to limit the defence to circumstances where the accuseds
    conduct would be seen as normatively justified: [citations omitted].

[9]

Unlike s. 35 of the
Criminal
    Code
, s. 34(2) does not require defendants to retreat in the face of an
    assault, but rather permits defendants to stand their ground during the early
    stages of a confrontation.  However, as
    the appellant properly concedes, the possibility of retreat is relevant to the
    second and third elements of the s. 34(2) defence, namely, the issues of
    whether the appellant did have a reasonable apprehension of death or grievous
    bodily harm, and whether the appellant had a reasonable belief that it was not
    otherwise possible to save himself from harm except by killing Willis: see
R. v. Proulx
(1998), 127 C.C.C. (3d) 511
    (B.C. C.A.), at paras. 39-51;
R. v.
    Druken
(2002), 164 C.C.C. (3d) 115 (Nfld. C.A.), at para. 24;
R. v. Nieto
(2007), 222 C.C.C. (3d) 510
    (Man. C.A.), at para. 29.

[10]

The issue of retreat was also relevant to the Crowns
    position that, from the start, the appellant had come to settle a score and
    that he had not acted in self-defence.

[11]

It follows that Crown counsel was not barred from
    making submissions as to the possibility of retreat.  However, had Crown counsel told the jury that
    the appellant was precluded from raising the defence of self-defence because he
    had failed to retreat at the start of the
confrontation,
the respondent concedes that the trial judge would have been required to give a
    correcting instruction.  The appellant in
    turn concedes that Crown counsel did not explicitly make that erroneous
    submission to the jury.  The issue for us
    to decide is whether there was a sufficient risk that the jury could have
    understood Crown counsel to be making that erroneous submission, requiring a
    correcting instruction from the trial judge.

[12]

We do not agree that the impugned passage in the
    Crowns closing bears the meaning attributed to it by the appellant on appeal.  We note that the appellants experienced and
    highly-skilled trial counsel made no objection to the trial Crowns closing and
    did not request a correcting instruction.  Moreover, when addressing the jury, trial
    counsel effectively joined issue with the Crown on the point by responding to
    the impugned portion of the Crowns closing address as follows:

Now, the Crown tries to suggest that [the
    appellant] did have a choice.  The Crown
    suggests that he could have retreated.  Well, I suggest that in the fast-paced dangerous situation he found
    himself in, that option was not reasonably available to him.  I suggest that a reasonable person in that
    dangerous situation would have believed there was no safe alternative.  This so-called retreat option, in my respectful
    submission, would be far too dangerous.  Mr. Cain couldnt back his way out of danger.  He tried that.  Retreat would require that he turn his body,
    and most importantly and most dangerously it would require that he turned his
    back to Joel and the entire gang in order to run away, and that would expose
    the back of his head to his attackers bat.

[13]

In our view, the lack of objection and the manner in
    which the appellants trial counsel responded provides significant support for
    the respondents position that there simply was no significant risk that the
    jury could have been led to believe that the appellant was precluded from
    relying on self-defence because he did not retreat at the initial stage of the
    confrontation.

[14]

The trial judge made only passing reference to the
    issue of retreat in his charge.  The only
    objection to the charge relevant to this point came from Crown counsel who
    submitted that the trial judge should have explained to the jury the Crowns
    submission on the possibility of retreat.  The trial judge refused to re-charge the jury
    on the point.  The appellant argues,
    however, that the way in which the Crown explained his retreat theory when objecting
    demonstrates that he intended the jury to reject self-defence as a possibility.
     Whatever the Crown may have intended, it
    is clear from the argument following the Crowns objection that neither the
    trial judge nor the appellants trial counsel perceived the Crowns position to
    have the impermissible effect complained of on appeal.

[15]

The entire incident from the moment Joel Willis emerged
    from the club with a bat until he was fatally shot lasted only a few seconds.  As the appellants trial counsel recognized,
    the jury was entitled to consider the issue of retreat in relation to the
    appellants reasonable apprehension of death or grievous bodily harm and
    whether he had a reasonable belief that it was not otherwise possible to save
    himself from harm except by killing Willis.  The jury was also entitled to consider the
    issue of retreat in relation to the Crowns theory that the appellant came to
    the scene armed with a loaded gun, bent on revenge.  We do not agree that when the jury deliberated
    on this case, it was left with a misleading or inadequate explanation of the
    relevance of retreat to the issue of the appellants s. 34(2) defence.

2. Did the
    trial judge err by failing to correct Crown counsel's submission to the jury on
    the appellants lack of fear?

[16]

The appellant takes issue with the fact that in his
    closing address to the jury, Crown counsel submitted that the appellant did not
    fear Joel Willis because Willis was armed only with a wooden bat, while the
    appellant had a loaded weapon.  The trial
    judge, following a standard s. 34(2) instruction, used the word fear rather
    than reasonable apprehension with respect to the issue of whether the
    appellant reasonably apprehended that he would be killed or seriously injured
    by Willis.  The appellant submits that
    the jury could have rejected self-defence on the erroneous basis that, because
    the appellant was armed, he did not fear that he was going to die, even if he
    reasonably believed that Willis would kill or seriously injure him unless he
    shot Willis.

[17]

In our view, the Crowns closing submission that the
    appellant had nothing to fear related to the Crowns overall position that the
    appellant had not acted in self-defence but had instead come to the Willis
    establishment as an aggressor, armed with a handgun, in order to avenge an
    insult to himself and his brother.  Again,
    there was no objection made on this point at trial.  The trial judge repeatedly instructed the jury
    that the appellant was entitled to the benefit of the s. 34(2) defence if he
    reasonably believed that Willis would kill or seriously injure him unless he
    shot Willis.  We do not agree that the
    jury could have been misled into thinking that because the appellant was armed
    and able to meet any threat posed by the victim, he was somehow disentitled to
    rely on self-defence.

Conclusion

[18]

The trial judge gave the jury a model charge on the elements
    of self-defence under s. 34(2) to which no objection is taken.  Both at the beginning and at the end of his
    closing, Crown counsel explained to the jury that it was to apply the law as
    given by the trial judge.  The trial
    judge also gave the standard explicit direction to that effect.  The appellants arguments turn on possible
    interpretations of submissions made by Crown counsel.  The people in the best situation to judge
    whether the jury could be misled by those submissions were the appellants experienced
    trial counsel and the trial judge. Neither attributed the meaning the appellant
    now seeks to attach to the Crowns closing.

[19]

The very able submission advanced on appeal by Mr.
    Campbell arises from the perception that if the jury accepted

Howes evidence given at the second trial, it was
    bound to acquit on self-defence, and that since the jury did not acquit, it
    must have misapprehended the law.  This
    view of the case ignores the fact that Howe was a difficult and unruly witness
    at the second trial and that the jury also had to take into account the very
    different version of the incident Howe gave at the first trial.  The jury also had to consider the fact that
    the appellant came to the scene with a loaded handgun to settle a score.  This was plainly not an unreasonable verdict
    or one that could only have been reached on the basis of a misunderstanding of
    the law.

[20]

Taking all the circumstances into account, we cannot agree
    with the submission that the jury could have been led astray by anything said
    in the Crowns closing address to the jury.

[21]

Accordingly, the appeal from conviction is dismissed
    and the appeal from sentence is dismissed as abandoned.

Robert J. Sharpe J.A.

J. MacFarland J.A.

H.S.
LaForme
J.A.

RELEASED:  April 14,
    2011


