



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Philips, 2017 ONCA 752

DATE: 20170928

DOCKET: C60601 & 60607

Gillese, van Rensburg and Brown JJ.A.

DOCKET: C60601

BETWEEN

Her Majesty the Queen

Respondent

and

Jemaine Phillips

Appellant

DOCKET: C60607

AND BETWEEN

Her Majesty the Queen

Respondent

and

Drai OHara-Salmon

Appellant

Delmar Doucette, Andrew Furgiuele and Angela Ruffo, for the
    appellant, Jemaine Phillips

Richard Litkowski and Catriona Verner, for the
    appellant, Drai OHara-Salmon

John Patton, for the respondent

Heard: April 4-5, 2017

On appeal from the convictions entered on January 10,
    2015, and the sentence imposed on January 10, 2015, by Justice Andrew J.
    Goodman of the Superior Court of Justice, sitting with a jury.

Brown J.A.:

PART I - OVERVIEW

[1]

In the early morning hours of December 27, 2011, the appellant, Jemaine
    Phillips, shot and killed Said Hadbai with a sawed-off shotgun in a parking lot
    across the street from Jacks Bar, in London, Ontario. At the time, Phillips
    was beside his friend, the appellant, Drai OHara-Salmon, who was preparing to
    have a one-on-one fight with Hadbai.

[2]

Phillips and OHara-Salmon were convicted by a jury of first-degree murder.
    Both appeal their convictions.

[3]

Phillips and OHara-Salmon advance multiple grounds of appeal. Phillips
    main grounds of appeal focus on the trial judges (i) failure to leave the
    partial defence of provocation with the jury, (ii) exclusion of expert
    psychiatric evidence that Phillips argued was relevant to his defences and the
    issue of whether the killing of Hadbai was planned and deliberate, and (iii)
    error in using the new s. 34 of the
Criminal Code
, R.S.C. 1985, c.
    C-46 to charge the jury on self-defence, instead of the old s. 34(2).

[4]

As his main ground of appeal, OHara-Salmon argues the trial judge
    failed to charge the jury properly on his mode of participation under ss. 21(1)
    and (2) of the
Criminal Code
for the offence of first degree murder.

[5]

For the reasons set out below, I would dismiss both appeals.

I.

SUMMARY OF EVENTS

[6]

At the time of the shooting, Phillips and OHara-Salmon were 18 and 19
    years old respectively.

[7]

At trial, Phillips testified; O'Hara-Salmon did not.

[8]

Two series of events  one involving a dispute over a girlfriend and the
    other concerning drugs  led them to meet outside of Jacks Bar in the early
    morning hours of December 27, 2011 and then to cross the street to the parking
    lot where Phillips ultimately shot and killed Hadbai.

A.

The events involving a dispute over a girlfriend

[9]

On the evening of December 26, 2011, OHara-Salmon went to Jacks to
    drink with friends. There he encountered Hadbai. There was a history between
    OHara-Salmon and Hadbai, stemming from their sequential relationships with
    Brittney Knowles.

[10]

O'Hara-Salmon and Knowles dated in 2008, but they broke up in April
    2009. A few months later, Knowles began a two-year relationship with Hadbai,
    during which she periodically saw O'Hara-Salmon. In the fall of 2010, Knowles spent
    time with OHara-Salmon throughout a week or two, during which they were
    physically intimate, although she continued to date Hadbai.

[11]

Knowles and Hadbai broke up in June 2011, whereupon Knowles re-established
    contact with O'Hara-Salmon. During the course of their communications,
    O'Hara-Salmon wrote Knowles a letter stating, in regards to Hadbai, that he
    intended to wet him up - slang meaning to cause bleeding and make the victim
    wet. Knowles told the police that Hadbai, for his part, was obsessed by rage
    against O'Hara-Salmon and once told her that if he met O'Hara-Salmon, it would
    be bad.

[12]

At some point in the evening of December 26, 2011 O'Hara-Salmon was
    picked up by Phillips and his girlfriend, Jessica Lovell, taken to his home,
    and then dropped off in front of Jacks, where O'Hara-Salmon intended to meet
    up with two friends, Kenzie Sabourin and Rigoberto Solano.

[13]

O'Hara-Salmon joined the line to enter Jacks. He ended up standing
    behind Hadbai and his friend, Yasin Amir. There was minimal contact between
    them; Knowles was not mentioned. They all entered the bar at 12:41 a.m. on
    December 27 and went their separate ways.

[14]

Amir and Hadbai parted company for a while in Jacks. According to Amir,
    when they linked back up Hadbai described a confrontation he just had with
    O'Hara-Salmon. Thereafter, Amir and Hadbai repeatedly went over to where
    O'Hara-Salmon was drinking with his friends. Hadbai and O'Hara-Salmon exchanged
    words about Knowles. Evidence from some of O'Hara-Salmons friends suggested
    Hadbai was the one initiating the exchanges. However, Amir testified that
    Hadbai told him O'Hara-Salmon was sayinglike I dont fight niggers. I shoot
    them.

[15]

At 12:53 a.m., O'Hara-Salmon sent a text to Phillips: Get the thing kp
    is here. To put the text in context requires describing a series of earlier
    events involving Phillips.

B.

The events involving drugs

[16]

Phillips friend Sabourin knew a drug dealer by the name of Redur Tawfiq
    Mohamed, whose nickname was KP. In October or November 2011, Sabourin
    obtained about four ounces of cocaine from KP to sell on a consignment basis.
    Phillips agreed to keep the drugs at his girlfriend, Lovells place. Sabourin
    assured Phillips he would not have to hold the drugs very long as Sabourin
    would sell them quickly.

[17]

Several weeks passed. Sabourin did not sell the drugs. Phillips said he
    became concerned about his safety, worried KP might do something. Phillips
    shared his concern with his friend, Solano, during a private conversation in
    November. Phillips said they needed to hurry up and move the drugs because he
    felt KP would not be happy about the delay. Phillips described himself as
    nervous, scared, and afraid at that point.

[18]

About a week later, in early December, Solano gave Phillips a sawed-off
    shotgun with a clip and two shells. Phillips placed the gun in a duffle bag,
    which he then took with him wherever he went. Phillips testified he did not
    tell O'Hara-Salmon about the gun; Solano testified Phillips possession of the
    gun wasnt a secret.

[19]

As mentioned, on the evening of December 26, Lovell and Phillips drove
    O'Hara-Salmon to Jacks and then returned to Lovells place.

[20]

O'Hara-Salmon met Sabourin at Jacks. KP was at the bar. KP demanded
    Sabourin produce his drugs or money. According to Sabourin, KP made a motion to
    his hip, indicating he was armed with a firearm. Sabourin answered he would
    return with the cocaine by nights end.

[21]

As noted above, a 12:53 a.m. text was sent to Phillips from
    O'Hara-Salmons phone: Get the thing kp is here. Records show that between 1:00
    a.m. and 1:47 a.m., Phillips sent a text to O'Hara-Salmon, the contents of
    which are unknown. He also dialed O'Hara-Salmons phone three times, although
    it is not known whether a connection was made. Three text messages asking
    Phillips to call were sent from Sabourins phone between 1:45 a.m. and 1:53
    a.m.; Phillips dialed Sabourins number three times during that period.

[22]

They connected and talked. Sabourin told him to bring the cocaine
    package to Jacks right away or there would be a problem with KP. Sabourin said
    KP was angry and was carrying.

[23]

Phillips took the package of cocaine from its hiding place in Lovells
    apartment, placed it inside his boxers, loaded the shotgun with two shells, and
    asked Lovell to drive him to Jacks.

[24]

When Lovell drove up in front of Jacks, O'Hara-Salmon got into the back
    seat. Phillips testified OHara-Salmon was drunk, said KP was giving them
    problems, and also started talking about some other guy. Lovell, in her
    initial statement to police, had also thought OHara-Salmon had said: he had
    seen somebody inside the bar he had had a problem with, they needed to get
    them, and I seen K. Phillips asked Lovell to park the car in the lot behind
    Jacks.

[25]

Phillips and O'Hara-Salmon got out of the car. Phillips had the cocaine
    and the sawed-off shotgun. Phillips and O'Hara-Salmon walked down an alley
    towards the front of Jacks.

[26]

By this time it was 1:58 a.m. Jacks was closing. People were leaving
    the bar.

C.

In front of Jacks

[27]

About 15 minutes before closing, Hadbai and his friends, including Amir,
    left Jacks and remained in front of the bar.

[28]

At 1:46 a.m., Hadbais girlfriend, Nahrain Gorges, sent him a text.
    Hadbai responded two minutes later: Im prob ganna get shot can u wait plz.

[29]

Sabourin left Jacks just before closing. He saw Phillips at the mouth
    of the alley. Phillips expressed concern he and others were in danger from KP. Sabourin
    said everything was smooth, took the cocaine from Phillips, and gave it to
    one of KPs runners. Phillips said Sabourin lied when he testified that he had
    told Phillips everything was fine with KP.

[30]

Amir saw Phillips and OHara-Salmon at the mouth of the alley shortly
    after 2:00 a.m. According to Amir, OHara-Salmon pointed to Amir and said not
    him, and then pointed to Hadbai and said him.

[31]

Amir testified he talked to Phillips just basically trying to mediate
    the girlfriend dispute between OHara-Salmon and Hadbai.

[32]

According to Phillips, Hadbai was talking shit to OHara-Salmon and
    challenged him to cross the street. OHara-Salmon responded, get out of my
    face. Amir gave a different version of events, stating OHara-Salmon wanted to
    fight Hadbai in the alley, while Hadbai wanted the fight to take place in the
    parking lot across the street from Jacks.

[33]

Phillips and OHara-Salmon crossed over to the parking lot at 2:05 a.m.,
    followed by Hadbai and Amir. A crowd of about 15 to 20 people gathered.

D.

The events in the parking lot

[34]

There is no dispute Hadbai and OHara-Salmon squared-off opposite each
    other in preparation for a fight. There is also no dispute Phillips moved up
    beside OHara-Salmon and fired the sawed-off shotgun at Hadbai from a few
    metres away, hitting him. Hadbai stumbled away, before falling to the ground.
    He died at the scene.

[35]

Since the witnesses at trial differed in their testimony about precisely
    what happened between the time Hadbai and OHara-Salmon prepared to fight and
    Phillips shot Hadbai, I will leave a more detailed treatment of the evidence
    until a consideration of Phillips grounds of appeal concerning the issues of self-defence
    and provocation.

E.

The arrest of the appellants

[36]

Phillips fled the scene, but was arrested shortly after the shooting in
    the parking lot of a nearby office building. OHara-Salmon was arrested at a
    later date.

PART 2  THE APPEAL BY PHILLIPS

II.

THE ISSUES ON PHILLIPS APPEAL

[37]

Phillips raises several grounds of appeal, arguing the trial judge
    erred:

(i)

in his instructions on self-defence;

(ii)

by excluding expert psychiatric evidence on the issues of self-defence,
    provocation, and whether the killing was planned and deliberate;

(iii)

by failing to leave provocation with the jury as a partial defence;

(iv)

by failing to give a rolled-up charge;

(v)

by providing an improper summary of the Crowns position in his charge;
    and

(vi)

by improperly instructing the jury about
    the use they could make of Hadbais Im prob ganna get shot text.

III.

THE CHARGE ON SELF-DEFENCE

A.

The issues stated

[38]

Phillips submits the trial judge committed two reversible errors in his
    charge on self-defence, which should result in a new trial.

[39]

First, he argues the trial judge incorrectly charged the jury using the
    new self-defence provisions in s. 34 of the
Criminal Code
. The killing
    of Hadbai occurred on December 27, 2011. Amendments to the self-defence
    provisions of the
Criminal Code
made by the
Citizens Arrest and
    Self-defence Act
, S.C. 2012, c. 9, came into force on March 10, 2013. The
    jury was charged in January 2015. As a result of discussions at a pre-charge
    conference, with the concurrence of the parties, the trial judge charged the
    jury on self-defence using the new s. 34.

[40]

However, several months after the trial, this court held in
R. v.
    Bengy
, 2015 ONCA 397, 21 C.R. (7th) 104, at paras. 38 and 70-71, that the
    new s. 34 applied only to charges laid after its coming into force. Phillips
    submits that in light of
Bengy
, the trial judge committed reversible
    error in charging the jury under the new s. 34. By doing so, he argues, the
    jury was instructed in a way that was less generous to the appellant.

[41]

As his second ground of appeal, Phillips submits the trial judge erred
    by using language in his charge that reversed the burden of proof in respect of
    self- defence.

[42]

On its part, the Crown submits that where the parties agree to use the
    new s. 34, they should be entitled to do so. If the trial judge erred by not
    following the approach set down in
Bengy
, his error is not reversible.
    In any event, whether the old or new self-defence provisions were used, the
    result would have been the same because the provisions advance the same
    principles. The trial judges charge captured the requirement the Crown prove,
    beyond a reasonable doubt, that Phillips alleged intention of defending
    himself and O'Hara-Salmon was invalid and, instead, his actual intention was to
    cause Hadbais death. In any event, the proviso would be engaged, and the
    result would be the same because Phillips and other witnesses agreed the
    shooting was not necessary in the circumstances.

[43]

I shall consider each submission in turn. Before doing so, a more
    detailed review of the evidence surrounding the events of the shooting is in
    order.

B.

The evidence

[44]

Phillips testified at the trial. He acknowledged he had agreed to hold
    the cocaine Sabourin was fronting for KP. Although he knew what KP looked like,
    he did not have a direct relationship with him. He had heard KP was a really
    high profile drug dealer, carried guns and was a serious person in London.

[45]

According to Phillips, when late on the evening of December 26, 2011 he
    received several texts, including the one from OHara-Salmon telling him get
    the thing, he understood the thing to be the cocaine.  He had a phone
    conversation with Sabourin, who said KP was in Jacks Bar gesturing that he
    had a gun. He was panicking and afraid.

[46]

After receiving the get the thing text and talking with Sabourin,
    Phillips testified he grabbed the sawed-off shotgun, loaded and cocked it, put
    it down his left pant leg, and then had his girlfriend, Lovell, drive him to
    Jacks. Lovell had a different recollection, testifying that when they reached
    Jacks, Phillips took the gun from the duffle bag and put it down his pant leg;
    Phillips denied he did so.

[47]

When asked what he was planning to do with the gun, Phillips testified:
    I wasnt planning anything, it was just my protection because [Sabourin] had
    just told me that KP was gesturin that he had a gun, so I felt that I needed
    to protect myself ... [I]f KP were start shooting at me or my friends, then I
    guess Im gonna hafta shoot back.

[48]

As Lovells car approached Jacks, Phillips looked for KP, but did not
    see him. Phillips stated he planned to return to Lovells house after he gave
    the drugs to Sabourin.

[49]

Near Jacks, OHara-Salmon got into the car. On cross-examination,
    Phillips acknowledged O'Hara-Salmon was laughing - he was not anxious,
    terrified or frightened. KPs presence at the bar did not seem to cause
    O'Hara-Salmon any anxiety.

[50]

Lovell parked behind Jacks. Phillips testified OHara-Salmon was the
    first one out of the car. Phillips followed him up the alleyway beside Jacks,
    with the gun in his pant leg. A video of the alley shows Phillips stopping and
    adjusting something in his pant leg, with O'Hara-Salmon turning around and
    looking at him.

[51]

Phillips testified at that point he felt panicky and scared of KP. Phillips
    said his feeling of panic and fear persisted when he arrived at the front of
    Jacks and handed the drugs over to Sabourin. He didnt know what was going
    on. Sabourin asked Phillips for the drugs, which he handed over. According to
    Phillips, Sabourin just walked off with the drugs, having said nothing about
    KP. Although Phillips thought Sabourin would return the drugs to KP, he
    testified he did not think everything would be fine because a drug dealer would
    want money, not returned, unsold drugs.

[52]

Nevertheless, he was not going to leave his friends cause I dont know
    whats going on right now. This exchange occurred during Phillips
    cross-examination:

Q. So again, by way of choices that are available to you,
    options that you had, you chose to stay with your friends, because you did not
    know what might happen, and because there might be some danger, there might be
    a gun, and for which you were prepared, you were ready, in case because you had
    your own gun, yourself?

A. Correct.

[53]

At that point, Amir and Hadbai walked up to Phillips and OHara-Salmon.
    Phillips did not know Hadbai. Phillips was cordial to Amir, shaking his hands
    and embracing him. Hadbai, however, started talkin shit to Drai saying
    lets go across the street. OHara-Salmon told Hadbai to get out of his face.

[54]

Phillips asked Amir what was going on. Amir responded, theres gonna be
    a fightCome across the street. Phillips testified that as he was crossing the
    street, he asked Sabourin is everything good? Sabourin replied: No, theres
    gonna be a fight. Phillips assumed Hadbai was a friend of KP, although before
    that evening he had no reason to so believe: I just thought about it, right
    there, because he was yelling at Drai to come across the street. Phillips
    assumed there would be a fight between KPs friends and his friends. He
    testified we were gonna be fighting Said and KP and their friends.

[55]

Phillips and OHara-Salmon crossed the street to the parking lot,
    followed by Hadbai, Amir and others. When asked why he did not return to
    Lovells after handing over the drugs to Sabourin, Phillips stated: Because I
    was there with my friends. I was there to get my friends.

[56]

At the time, Phillips did not hear anyone talking about a gun and he did
    not tell anyone he had a gun. He understood it would be a one-on-one fight; a
    fistfight.

[57]

Phillips saw KP, Hadbai, Amir and a few others in the parking lot.
    People divided into two groups.

[58]

According to Phillips, opposite them stood Hadbai, with Amir and KP
    flanking him. Both groups just stood and looked at each other. Phillips heard
    Amir say, This is gonna be a one-on-one fight.

[59]

Then, Phillips saw KP leave the group, run to a nearby car, and open the
    trunk. Although he thought KP was going to get a weapon, Phillips did not actually
    see KP get a gun or weapon. On Phillips cross-examination, the following
    exchange took place:

Q: [A]nd you put two and two together, you think, K-P who I
    know by reputation is as likely going to a car to get a gun to come back to
    shoot us?

A: Correct.

Q: And, at that point, any ordinary intelligent person wouldve
    said to Drai, Dont be takin off your jacket, we gotta go, point out to K-P,
    Theres K-P, hes goin to a car, the trunk is opening, lets get outta here?

A: Thats correct.

Q: Well, that, thats what an ordinary person would do, did you
    do that?

A: No, I did not.



Q: Why did you keep from [your friends] the fact that you saw
    K-P running through the Williams parking lot, the trunk being open, why didnt
    you get them, Hey, lets get outta here. There might be a gun-drop.

A: I was just observin the parking lot.

[60]

Next, Phillips saw O'Hara-Salmon and Hadbai take a few steps towards
    each other and take off their jackets. He then saw Hadbai pull something out of
    his right jean pocket  black and shiny  and point it in the direction of
    O'Hara-Salmon, his right arm extended forward in front. At trial, Phillips
    testified he thought it was a gun on the basis that since Hadbai was a friend
    of KP, if he was pulling anything out, it was going to be a gun. In an earlier
    statement to the police, Phillips said it was a knife.

[61]

Phillips testified he was about 11 or 12 metres from Hadbai.

[62]

He said he then pulled out the sawed-off shotgun, ran beside
    O'Hara-Salmon, and pointed the gun in Hadbais direction, holding it with both
    hands. The gun was in plain sight and Hadbai should have seen it. Phillips did
    not say anything to Hadbai. He thought his life was in danger. He intended to
    stop Hadbai from what he was doing; he hoped Hadbai would stop coming at them
    because Phillips was pointing the gun.

[63]

Some witnesses testified they saw Phillips crouch down beside
    O'Hara-Salmon and point the gun; Phillips denied doing so.

[64]

According to Phillips, when Hadbai was still pointing the object
    Phillips thought was a gun, Phillips saw KP run back into the parking lot
    towards O'Hara-Salmon and himself.

[65]

Phillips remained beside O'Hara-Salmon for a few seconds, pointing his
    gun when he observed Hadbai start to run at them. When Hadbai was about a metre
    away, Phillips said he panicked and shot the gun: I felt my life, and my
    friends life was in danger, thought he was gonna shoot, because I thought it
    was a gun at the time. On cross-examination, Phillips agreed he deliberately,
    not accidentally, shot the gun at Hadbai to prevent OHara-Salmon and himself
    from being shot, and he did so because he felt his life was in danger.

[66]

When asked in examination-in-chief why he did not do something other
    than shoot Hadbai, Phillips responded: I felt he had a gun. I felt like my
    life was in danger, if I wouldve turned around and ran, he wouldve started
    shooting. The Crowns testing of that evidence on cross-examination resulted
    in the following exchange:

Q: And in order to overcome that danger, the options available
    to you, otherwise, were: shoot the gun into the air, say, Ive got a gun here.
    Look out. Dont come any closer; shoot him in the knee; shoot it into the
    ground in front of him. All of those options available to you, you thought were
    insufficient?

A: Yes.

Q: You had to shoot him in the chest to stop this threat?

A: Yes.

[67]

After shooting the gun, Phillips saw Hadbai stumble and fall, with a
    black, shiny knife lying beside his hand. Phillips then ran away.

[68]

The Crowns lengthy cross-examination of Phillips concluded with the
    following exchanges:

Q: Im gonna put to you sir, that in all the steps along the
    way, you had ample opportunity to avoid putting yourself in that situation,
    that you chose to put yourself in that situation, that it was not necessary for
    you to be in that situation, it was not necessary for [you] to shoot and kill
    Said Hadbai.

A: It was not necessary for me to shoot him...

Q: Right.

A: But it was necessary for me to be there for my friends.

Q: Okay. So, help me with that, and Im not gonna belabour the
    point. From the moment you got in the car with the sawed off shotgun stuffed
    down your pants, or, in a duffle bag loaded, you took that gun with you, fully
    and with knowledge that the opportunity was there, you might have to use it?

A: Yes.

Q: And you chose to use it, because you chose it to leave the
    drugs with Drai, for Drai to give the drugs over, to go to Kenzie and give him
    the drugs and leave, to leave with Drai, to leave with Rigoberto, you chose to
    walk across the street, you chose to stay when the fight was ongoing, you chose
    to stay and involve yourself in a matter that you couldve just walked away
    from at any time?

A: Youre correct.

Q: Now, Im going to put to you, sir, that the reason you
    stayed and took the gun out at the time you did, was because you and Drai
    O'Hara-Salmon had planned, Him, Not him, him Said Hadbai, was going to be
    shot that night by you?

A: That is not true.

[69]

As to the evidence given by the other witnesses present in the parking
    lot at the time of the fight:

(i)

no other witness testified to seeing KP leave the fight circle, go to a
    car, and return to the fight. One witness, Liban Ali, stated that when Hadbai
    charged toward O'Hara-Salmon, he saw KP lurking behind them;

(ii)

no other witness testified to seeing Hadbai holding a gun; and

(iii)

some witnesses said they did not see Hadbai holding a knife; others said
    they did; one, Solano, said he saw a knife in Hadbais pant pocket; another, Khaled
    Khalil, testified he saw a knife on the ground after the shooting and Amir
    acknowledged to him he had given the knife to Hadbai just in case.

C.

Analysis

(1)

First ground of appeal: The trial judge erred by charging the jury using
    the new self-defence provisions

(a)

The effect of the amendments to s. 34 of the
Criminal Code

[70]

The new s. 34 of the
Criminal Code
does not simply declare the
    law as contained in the former self-defence provisions; it has made some
    substantive changes to the law of self-defence:
R. v. Green
, 2015 QCCA
    2109, 337 C.C.C. (3d) 73, at para. 50, leave to appeal to S.C.C. refused, 2016
    CarswellQue 8530. While in some circumstances the application of both the
    former and new provisions will result in the same verdict, that will not always
    be the case:
R. v. Evans
, 2015 BCCA 46, 321 C.C.C. (3d) 130, at para.
    30.

[71]

The changes wrought by the amendments were described by this court in
Bengy
,
    at paras. 46 to 48:

The new unified three-element framework in the
Citizens
    Arrest and Self-defence Act
may not have changed the scope of what is
    relevant to the defence. However, it changed the nature of what is relevant.
    Mandatory requirements were converted into discretionary factors (e.g.
    proportionality, provocation, the quantum of force used and the quantum of
    force apprehended)

In some cases, the new self-defence provisions are more
    generous and in other cases they are more restrictive. The more generous
    elements of the new provisions include:

·

The conversion of mandatory prerequisites into discretionary
    considerations, which means more claims will be put before juries;

·

The allowance of defence of other persons not necessarily under
    [the accuseds] protection, as required under the former s. 37;

·

The elimination of a strict limitation on when fatal defensive
    force can be used, which previously required an apprehension of death or
    grievous bodily harm; and

·

The expansion of acts of self-defence from use of force to any
    act (e.g. stealing a car or breaking into a house).

There are also less generous elements of the new provisions.
    Most significantly, they require that certain pro-conviction factors be
    considered in every claim of self-defence, such as whether other means of
    response were available to the accused, the nature and proportionality of the
    accuseds response, and the accuseds role in the incident (i.e. provocation).
    Such considerations were not always relevant under the old regime.
For instance, the former s. 34(2) had no proportionality
    requirement and arguably justified excessive force if the accused was under a
    reasonable apprehension of death.
The former provisions also did not
    require consideration of alternative means of response, which made it possible
    for self-defence to be based on stand your ground righteousness. [Emphasis
    added.]

[72]

Given
Bengys
holding that the new s. 34 applies only to
    charges laid after it came into force, Phillips submits the trial judges error
    in charging using the new s.

34 in
    and of itself requires a new trial.

[73]

I would not accept that submission.

[74]

In a transitional case such as the present one, where counsel agreed the
    trial judge should charge using the new s. 34 notwithstanding the offence
    pre-dated March 10, 2013, a more case-specific inquiry is required. On the one
    hand, the old and the new provisions advance the same principles and overlap in
    many respects; on the other, as noted in
Bengy
, the new provisions are
    both more and less generous in terms of the accused. As a result, a case-specific
    approach requires assessing whether the charge using the new s. 34 deprived the
    accused of the benefit of some element of the defence that existed under the
    former self-defence provisions, or brought into play what Hourigan J.A.
    described in
Bengy
as pro-conviction factors that did not form part
    of the elements of the former self-defence provisions. Simply stated, the
    appellate inquiry should be: this is what the accused received by way of a
    charge; this is what the accused should have received; as a result, was the
    accused prejudiced?

[75]

Such a case-specific, functional inquiry starts by identifying the
    essence of the self-defence claim raised at trial by the appellant:
R. v.
    Pintar
(1996), 110 C.C.C. (3d) 402 (Ont. C.A.), at p. 414. Then, the charge
    should be reviewed to ascertain whether the key elements of the defence
    available to the accused under the former self-defence provisions were brought
    home to the jury for their consideration, in light of the essence of the
    self-defence claim advanced at trial.

(b)

The essence of Phillips self-defence claim

[76]

In the present case, the essence of Phillips self-defence position was
    put forward by his trial counsel in closing as follows:

[Jemaine Phillips] admitted that he shot Said Hadbai and
    explained why he did it, that he thought Said had a gun, and after he pulled
    out his shotgun, Said started running at him and at Drai, with the weapon in
    his hand. Jemaine believed that his life and Drais life were in danger. He
    thought he or Drai, or both of them were going to get shot. He thought it was
    the only way to protect his life and the life of his friend.

(c)

The elements of a defence available to Phillips under the old s. 34

[77]

Phillips submits the jury should have been charged using the former s.
    34(2). To ascertain whether the key elements of the defence available to
    Phillips under the old s. 34(2) were brought home to the jury, a useful
    starting point is a comparison of the elements of the new s. 34 and the old s.
    34(2), set out in the table below.



Former s. 34(2)

Present s. 34



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

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

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



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



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

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

(2)
In determining whether the act committed is
          reasonable in the circumstances, the court shall consider the relevant circumstances
          of the person, the other parties and the act, including, but not limited to,
          the following factors:

(a)
the nature of the force or threat;

(b)
the extent to which the use of force was
          imminent and whether there were other means available to respond to the
          potential use of force;

(c)
the persons role in the incident;

(d)
whether any party to the incident used or
          threatened to use a weapon;

(e)
the size, age, gender and physical
          capabilities of the parties to the incident;

(f)
the nature, duration and history of any
          relationship between the parties to the incident, including any prior use or
          threat of force and the nature of that force or threat;

(f.1)
any history of interaction or communication
          between the parties to the incident;

(g)
the nature and proportionality of the persons
          response to the use or threat of force; and

(h)
whether the act committed was in response to a
          use or threat of force that the person knew was lawful.



[78]

The old s. 34(2) defence contained three elements:

·

The existence of an unlawful assault;

·

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

·

A reasonable belief that it is not possible to preserve oneself
    from harm except by killing the adversary:
R. v. Pétel
, [1994] 1
    S.C.R. 3, at p. 12;
R. v. Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3, at
    paras. 93 - 94.

[79]

Each element possessed subjective and objective components. The
    subjective component focused on the accuseds beliefs and perceptions. The
    objective component focused on their reasonableness, based on the situation the
    accused perceived:
Cinous
, at para. 94. For each element, the old
    s. 34(2) first required the court to inquire into the subjective perceptions of
    the accused and then to ask whether those perceptions were objectively
    reasonable in the circumstances:
Cinous
, at para. 94.

[80]

By contrast, the new s. 34 contains the following three constitutive
    elements: (i) reasonable belief; (ii) purpose; and (iii) reasonableness. Watt
    J.A.s standard jury instructions convert those elements into three questions:

·

Did the accused believe, on reasonable grounds, that force was
    being used or threated against him or another person?

·

Did the accused do something for the purpose of defending or
    protecting him
self
or another person from that use
    or threat of force?

·

Was the accuseds conduct reasonable in the circumstances?

David Watt,
Watts Manual of Criminal Jury
    Instructions,
2d ed. (Toronto: Thomson Reuters Canada Limited, 2015), at
    pp. 1249-50.

[81]

Phillips submits that notwithstanding some overlap between the old s.
    34(2) and the new s. 34, he did not receive the benefit of the following three
    aspects of the old s. 34(2) by reason of the trial judge using the new
    provision to charge the jury:

(i)

Under the old s. 34(2), the defence applied even if the accused intended
    to kill or cause grievous bodily harm;

(ii)

the defence applied even if the accused provoked the assault; and

(iii)

the inquiry under the old s. 34(2) was not whether the responsive force
    used was no more than necessary to enable the accused to defend himself, but
    whether the accused believed, on reasonable grounds, that he could not
    otherwise preserve himself from death or grievous bodily harm:
Pintar
,
    at p. 421.

I shall consider each in turn.

(d)

The availability of s. 34(2) where the accused intended to kill

[82]

The trial judges instructions using the new s. 34 framed the second
    element of the defence as follows: Had the Crown proved beyond a reasonable
    doubt that when Mr. Phillips reached for and used the shotgun, it was not for
    the purpose of defending or protecting himself or Mr. O'Hara-Salmon from the
    use of force or the threat of force from Mr. Hadbai? The trial judge also
    instructed the jury that the Crown must establish beyond a reasonable doubt
    that Mr. Phillips use of the shotgun against Mr. Hadbai was not for the sole
    purpose of defending or protecting himself or Mr. O'Hara-Salmon from the use or
    threat of force by Mr. Hadbai.

[83]

As part of his discussion of Phillips purpose, the trial judge
    summarized the parties respective positions: Phillips asserted he believed he
    needed to harm Hadbai in order to save or protect himself or O'Hara-Salmon,
    whereas the Crown contended Phillips used the shotgun not to defend himself
    against the use of force, but to assault or kill Hadbai. The trial judge
    continued:

If Mr. Phillips purpose in reaching for and using the shotgun
    was solely to protect himself and/or Mr. O'Hara-Salmon against force being used
    against him, the requirement of the defensive purpose would be met. However, if
    he was using the shotgun to assault or kill Mr. Hadbai, the requirement that
    the force be used solely for the purpose of defending or protecting himself or
    others would not be met.

[84]

Phillips submits this portion of the charge contained a fundamental
    legal error. It ignored the repeated decisions of this court that in cases
    which result in death or grievous bodily harm, s. 34(2) applies even if the
    accused intended to kill or cause grievous bodily harm:
Pintar
, at p.
    421;
R. v. Baxter
(1975), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 110;
R.
    v. Bogue
(1976), 30 C.C.C. (2d) 403 (Ont. C.A.), at p. 407. The charge,
    Phillips argues, essentially instructed the jury that self-defence was not
    available to Phillips if they concluded he used the shotgun to assault or kill
    Mr. Hadbai.

[85]

I am not persuaded the impugned passage, when read in the context of the
    entire charge on self-defence, amounts to the misdirection Phillips contends.
    First, the trial judge made no suggestion in his charge that self-defence was
    not available to Phillips notwithstanding his admission he had deliberately
    shot and killed Hadbai. On the contrary, the trial judge spent considerable
    time instructing the jury on the availability of that defence notwithstanding
    Phillips admission.

[86]

Second, this part of the charge called on the jury to consider the
    purpose of Phillips act in shooting Hadbai. It is clear the trial judge was
    contrasting two situations: one where the accused acted to protect himself or
    another; and the other where he did not  what the trial judge described as
    using the shotgun to assault or kill Mr. Hadbai. In the immediately following
    paragraph, the trial judge distinguished acts for defensive and offensive
    purposes. In the former case, self-defence would be available; in the latter,
    it would not. As a result, when read in its entirety, the charge did not tell
    the jury that if they concluded Phillips in fact deliberately killed Hadbai,
    self-defence would not be available.

(e)

References to the new s. 34 factors

[87]

Phillips submits that by referring in the charge to the new s. 34
    factors, the trial judge charged the jury in a less generous way than
    available under the old s. 34(2).

[88]

Employing the new s. 34, the trial judge framed the third element as
    whether the act committed was reasonable in the circumstances. He directed
    the jury to take into account the relevant circumstances and actions of Mr.
    Phillips and of Mr. Hadbai, as well as the circumstances of the entire incident
    and evidence leading up to the event. He then instructed the jury that they
    must consider the factors enumerated in the new s. 34, including whether there
    were other means available to respond to the potential use of force and the
    nature and proportionality of Mr. Phillips response to the use of threat or
    force. He told the jury it could also take into account other circumstances
    that you think are relevant to the reasonableness of what Mr. Phillips did in
    response to the force that was being used against him by Mr. Hadbai.

[89]

As part of his review of the evidence relevant to this element of the
    defence, the trial judge mentioned Phillips evidence that Hadbai had advanced
    rapidly with what he believed was a gun in his hands, which Hadbai was going to
    use against them. The trial judge continued:

Although reasonableness is an objective standard, which is to
    be assessed in accordance with the findings that you make in relation to what
    relevant facts were at the material time, you must also consider whether Mr.
    Phillips was honestly mistaken about the circumstances in which he found
    himself. If he was mistaken about those circumstances, you must make your
    assessment of the reasonableness of his conduct in accordance with the
    circumstances as he honestly believed them to be, so long as his mistake was a
    reasonable mistake. If his mistake was not reasonable, it is irrelevant for the
    purposes of your assessment of the reasonableness of his conduct.

The question, ladies and gentlemen, that I have been discussing
    is whether the Crown has proved beyond a reasonable doubt that Mr. Phillips
    use of the shotgun against Mr. Hadbai was not reasonable in the circumstances.
In addressing this question, you must take into account all of
    the factors that I have reviewed for you, as well as any other factor that in
    your view impact upon the reasonableness of the use of the shotgun in the
    circumstances. You may consider other factors as well.
You must,
    however, consider the factors as a whole, and in light of the evidence as a
    whole. It is for you to say, in the end, whether Mr. Phillips use of the
    shotgun was a reasonable act for the purpose of defending himself or O'Hara-Salmon
    against the force being used by Mr. Hadbai. [Emphasis added.]

[90]

Phillips submits the trial judges references to the new s. 34 factors
    resulted in a less generous charge because the trial judge told the jury they
    must consider the factors of (i) the role of the appellant in the incident,
    (ii) whether there were other means available to respond to the potential use
    of force, and (iii) the nature and proportionality of his response to the use
    of threat or force. These instructions, he submits, removed from the jurys
    consideration the more generous scope of justification offered by the old s.
    34(2).

Phillips role

[91]

Dealing first with the factor referring to the appellants role,
    Phillips submits the charge removed the availability of self-defence in cases
    of provocation, thereby removing the benefit available under the old s. 34(2)
    to an initial aggressor who provoked the assault against himself:
R. v.
    McIntosh
, [1995] 1 S.C.R. 686, at para. 42. I do not agree. Provocation,
    in the sense of acting as the initial aggressor, did not arise on the facts of
    this case.

Other means available and proportionality

[92]

Turning next to the trial judges reference to the factor of other
    means available to respond to the potential use of force and the nature and
    proportionality of his response to the use of threat or force, Phillips points
    out that the third element of the s. 34(2) defence concerned whether the
    accused believed, on reasonable grounds, that he cannot otherwise preserve
    himself from death or grievous bodily harm. In
Bogu
e this court
    stated, at p. 407, that under s. 34(2) there is no specific requirement that
    the repelling force used by the accused shall be proportionate to the unlawful
    assault, if the other conditions of the subsection are satisfied. Instead,
    [t]he essential question to be determined under s. 34(2)(b) in considering
    whether the force is excessive, is the state of mind of the accused at the time
    the force is applied. See also:
Baxte
r, at p. 109. In
Pintar,
this court held, at p. 421, that under the former s. 34(2) the question was
    not whether the responsive force used was no more than necessary to enable the
    accused to defend himself, but whether the accused believed, on reasonable
    grounds, that he could not otherwise preserve himself from death or grievous
    bodily harm. Phillips argues that by referring to the other means and
    proportionality factors, the trial judge deprived him of the more generous
    provisions of s. 34(2).

[93]

I am not persuaded by this submission. When assessing this portion of
    the charge, one must recall the more recent, detailed discussion of the belief
    on reasonable grounds analysis called for by s. 34(2) undertaken by the
    majority of the Supreme Court of Canada in
Cinous,
at paras. 121, 123-124:

[T]he requirement is that the belief that he had no other
    option but to kill must have been objectively
reasonable
.



Section 34(2) does not require that an accused rule out
a
    few
courses of action other than killing. The requirement is that the
    accused have believed on reasonable grounds that there was
no
    alternative course of action
open to him at that time, so that he
    reasonably thought he was obliged to kill in order to preserve himself from
    death or grievous bodily harm. In this case, there is absolutely no evidence
    from which a jury could reasonably infer the reasonableness of a belief in the
    absence of alternatives. There is nothing in the evidence to explain why the
    accused did not wait in the service station rather than go back to the van.
    There is absolutely nothing to explain why he did not flee once he had left the
    van. Indeed, there is nothing to suggest the reasonableness of his conclusion
    that he needed to walk back to the van and shoot the victim.

Self-defence under s. 34(2) provides a justification for
    killing. A person who intentionally takes another human life is entitled to an
    acquittal if he can make out the elements of the defence. This defence is
    intended to cover situations of last resort. In order for the defence of
    self-defence under s. 34(2) to succeed at the end of the day, a jury would have
    to accept that the accused believed
on reasonable grounds
that
    his own safety and survival depended on killing the victim at that moment Emphasis
    in original.]

[94]

Accordingly, in assessing the no alternative course of action aspect
    of the s. 34(2) defence, a jury is entitled to consider evidence as to whether
    the accused availed himself of other alternatives to the course of action he
    undertook:
Cinous
, at para. 123.

[95]

And this very issue of the availability of alternative courses of action
    was put in play at the trial during both Phillips examination-in-chief and
    cross-examination (referred to in paras. 66 and 68 above), as well as in his
    counsels closing address when he stated:

Jemaine told you clearly he shot in defence of himself and
    Drai. And [Crown counsel] suggests that Jemaine couldve run off or shouted
    instead of firing. The way he ran off after the sound of the second shot. I
    remind you that all of the events immediately surrounding Saids death happened
    very, very fast. For [Crown counsel] to divide this timeline in frozen seconds
    is not realistic. This is not the way time, sensations, reactions and life
    occurs for any of us, let alone in the mind of a scared teenager.

[96]

Consequently, I do not see the trial judges reference to the new s. 34
    factor of whether there were other means available to respond to the potential
    use of force as somehow depriving Phillips, on the record of this case, of some
    benefit otherwise available to him under the old s. 34(2).

[97]

Regarding the trial judges reference to the new s. 34s proportionality
    factor, on the specific facts of this case it is difficult to see how a
    reference to the proportionality factor, instead of to "belief on
    reasonable grounds" under the old s. 34(2)(b), could have affected the
    jury's self-defence analysis.

[98]

The concept of reasonableness under the old s. 34(2) connotes a
    community standard against which the actions of individuals within the
    community can be measured:
R. v. Pilon
, 2009 ONCA 248, 64 C.R. (6th)
    356, at para. 73. Here, Phillips admitted he possessed a most lethal illegal
    weapon - a sawed-off shotgun - took it to the area of Jack's Bar, and was
    prepared to use it to help his friends. By its verdict against Phillips of
    planned and deliberate murder, the jury evidently rejected Phillips singular
    evidence that at the fight it appeared Hadbai possessed a gun, when in fact he
    did not. The situation in the parking lot therefore was characterized by
    extremes: one person did not have a gun (except in Phillips singular view),
    while the other had a sawed-off shotgun. Those contrasting extremes left little
    room for the operation of "belief on reasonable grounds that Phillips
    could not otherwise preserve himself from death or grievous bodily harm"
    as a realistic factor in any self-defence analysis, unless the jury climbed
    into the skin of the respondent and accepted as reasonable a sociopathic view
    of appropriate dispute resolution and accepted the moral code of the criminal
    sub-culture in which the appellant operated:
Cinous
, at para. 130, per
    Binnie J., concurring;
Pilon
, at para. 75;
Grant
, 2016 ONCA
    639, 342 C.C.C. (3d) 514, at para. 63. That, the jury was not entitled to do.

[99]

On the specific facts of this case, I therefore conclude Phillips was
    not prejudiced by the trial judges use of the new s. 34. He did not lose a
    reasonable prospect for an acquittal on the basis of self-defence.

(2)

Second ground of appeal: The trial judge reversed the burden of proof in
    his charge on self-defence

[100]

Where the
    accused relies on self-defence, the burden of proof lies on the Crown, who must
    prove beyond a reasonable doubt that the defence does not apply:
Cinous
,
    at para. 39. The only burden on the accused is the evidential one of pointing
    to evidence that puts the defence into issue.

[101]

Phillips submits
    the trial judge erred by using affirmative language in the self-defence portion
    of his charge and decision tree, thereby effectively reversing the burden of
    proof on the issue of self-defence. I would not accept this submission.

(a)

The language of the charge

[102]

Phillips
    contends two sentences in the charge reversed the onus of proof. In respect of
    the first element of the defence, at one point in the charge the trial judge
    stated: If you are not satisfied beyond a reasonable doubt that Mr. Phillips
    reasonably believed that force or the threat of force by Mr. Hadbai was being
    used against him or Mr. O'Hara-Salmon, then the defence of self-defence is not
    available to Mr. Phillips. The second instance occurred when the trial judge
    was instructing on the second element; he said: [I]f you are not satisfied
    beyond a reasonable doubt that Mr. Phillips purpose in reaching for and using
    the shotgun was solely to defend or protect himself or Mr. O'Hara-Salmon
    against the force or threat of force used by Mr. Hadbai, then the defence of
    self-defence fails.

[103]

I accept the
    syntax is awkward and the language can be read as incorrectly stating the
    burden of proof. However, when read in context, it does not amount to
    reversible error, for two reasons.

[104]

First, each
    sentence was immediately preceded by a proper statement of the onus: in the
    case of the first purported error - I remind you that there is no burden on
    the defence to prove anything; the burden remains with the Crown to disprove at
    least one element of the requirements for self-defence; and in the case of the
    second - The Crown must establish beyond a reasonable doubt that Mr. Phillips
    use of the shotgun against Mr. Hadbai was not for the sole purpose of defending
    or protecting himself or Mr. O'Hara-Salmon from the use or threat of force by
    Mr. Hadbai.

[105]

Second, the
    charge on self-defence ran to some 20 transcript pages. In it, the trial judge
    properly stated the burden of proof 16 times. As well, the charge on
    self-defence concluded with the following strong, correct reminder of the
    burden:

Remember, the burden is on the Crown, who must prove beyond a
    reasonable doubt that at least one of these conditions was absent. Mr. Phillips
    does not have any burden of proof and does not have to demonstrate that these
    conditions were present.

(b)

The language of the decision tree

[106]

Phillips also
    contends reversible error resulted from the trial judge using affirmative
    language in the decision tree when he framed the three questions concerning
    self-defence as follows:

·

Did Jemaine Phillips reasonably believe that force or threat of
    force was being used against him and/or Drai O'Hara-Salmon?

·

Was Jemaine Phillips act done for the purpose of defending
    himself and/or Drai O'Hara-Salmon from the above force or threat of force?

·

Was the act committed reasonable in the circumstances?

[107]

I do not accept
    this submission. As with the charge, the language of the decision tree must be
    examined in the overall context of the charge. Before reviewing those specific
    questions with the jury, the trial judge stated eight times the Crown bore the
    onus of proving beyond a reasonable doubt that one of those conditions was
    absent, failing which the jury was required to find Phillips not guilty of the
    offence.

[108]

Further, as he
    went through the decision tree questions, the trial judge provided the jury
    with a version of each question using negative language. For example, in
    respect of the first element, he told them the question they had to consider
    was: Has the Crown proved beyond a reasonable doubt that Mr. Phillips did not
    believe on reasonable grounds that force or the threat of force was being used
    against him or against Mr. O'Hara-Salmon? The trial judge reminded the jury
    that although he used affirmative language in the decision tree to avoid
    confusion, it was important they understood the burden to satisfy you beyond a
    reasonable doubt always remains with the Crown to prove the absence of one of
    the elements of self-defence.

[109]

In conclusion,
    given the trial judges repeated references to the correct burden of proof, I
    have no doubt the jury would have understood the proper burden to apply in
    their deliberations.

IV.

THE ADMISSIBILITY OF DR. GOJERS EXPERT EVIDENCE

A.

The background to seeking the admission of Dr. Gojers evidence

[110]

Part of the
    defence theory at trial was that Hadbai acted in a bizarre, aggressive manner
    on the night he was shot.

[111]

Defence counsel
    elicited evidence from two of Hadbais girlfriends, Knowles and Gorges, that
    Hadbai sometimes heard a voice, which he called Jad. The trial judge did not
    permit defence counsel to question the girlfriends about whether Hadbai
    suffered from schizophrenia.

[112]

Conflicting
    evidence emerged about whether Hadbai had initiated a confrontation with
    OHara-Salmon in Jacks Bar before the fight, as well as the details of
    Hadbais actions immediately before he was shot. Some witnesses testified that
    as Hadbai and OHara-Salmon were readying themselves to fight, Phillips ran
    beside OHara-Salmon or towards Hadbai, pulled out his sawed-off shotgun and
    shot Hadbai. Other witnesses, including Phillips, testified they saw Hadbai run
    or heavily walk towards OHara-Salmon, at which time Phillips shot him.

[113]

Well into the
    trial, counsel for Phillips served formal notice of his intention to call
    expert evidence from a forensic psychiatrist, Dr. Julien Gojer, on whether
    Hadbai was suffering from a mental disorder at the time of the shooting.
    Phillips contended evidence of Hadbais mental state was relevant in three
    ways: (i) Hadbais hearing of a voice  Jad  prompted him to engage in
    aggressive conduct that put his personal safety at risk, making it more likely
    Hadbai (or Jad) drove the events leading to his death, and undermining any
    notion of a planned and deliberate homicide; (ii) Hadbais mental state made it
    more likely he was the aggressor at the moment of his death, thereby supporting
    Phillips defences of self-defence and provocation; and (iii) with respect to
    self-defence, Dr. Gojers evidence could assist the jury in explaining what
    defence counsel termed Hadbais aberrant behaviour, thereby enhancing the
    credibility of Phillips evidence that Hadbais conduct made him fear for his
    life.

[114]

At the time the
    notice was served, Phillips had not yet indicated whether he would testify, nor
    had he admitted he was present at the shooting, nor had he previously advised
    he would be asserting defences of provocation and self-defence. Although
    retained, Dr. Gojer had not yet prepared a report. In the exercise of his trial
    management powers, the trial judge asked for preliminary submissions from
    counsel about the threshold admissibility of Dr. Gojers evidence assuming, for
    purposes of the submissions, that Dr. Gojer would testify Hadbai suffered from
    schizophrenia or some other psychological problem. The trial judge concluded
    that while Dr. Gojers evidence would not be relevant to the issue of Hadbais
    state of mind simpliciter", he could not decide on the admissibility of
    the evidence until Phillips formally disclosed the defences he would be
    advancing. He deferred his ultimate ruling until a
voir dire
was held.

[115]

After Dr.
    Gojers report was delivered, the trial judge conducted a
voir dire
,
    at which Dr. Gojer testified. The trial judge ruled his proposed expert
    evidence was inadmissible.

[116]

Phillips submits
    the trial judge erred in excluding Dr. Gojers expert evidence.

B.

Dr. Gojers evidence

(1)

Dr. Gojers report

[117]

Dr. Gojer
    prepared a report dated December 12, 2014. In preparing his report, Dr. Gojer
    did not review any clinical or medical records about Hadbais physical or
    mental health. He relied heavily on the notes defence counsel had taken of the
    trial evidence given by Hadbais two girlfriends, Knowles and Gorges; he was
    not provided with transcripts of their evidence. Dr. Gojer highlighted several
    aspects of their evidence: (i) incidents where Hadbai had lost his temper; (ii)
    ones in which he had become involved in bar fights; and (iii) Hadbais
    description of hearing a voice, Jad.

[118]

Dr. Gojer wrote
    that [t]he information from different collateral sources suggest very strongly
    that Said Hadbai had several problems, including problems of escalating
    aggression, talking about hearing a voice, and of having another personality,
    Jad. He continued that [t]he problems that Mr. Hadbai had could be indicative
    of the following psychiatric illnesses. He listed two, schizophrenia and
    dissociative identity disorder, and described their symptoms. Dr. Gojer then
    concluded his report as follows:

We do not have any prior clinical records on Mr. Hadbai and a
    formal diagnosis is not possible as he cannot be interviewed or assessed at
    this time. The various signs and symptoms reported by collateral sources can be
    relied on to generate a variety of hypotheses as to what may have predisposed
    Mr. Hadbai to behave in the manner he did at the time of his death. Lastly,
    notwithstanding all the signs noted by collateral sources, Mr. Hadbai could
    have acted in the manner he did, independently of any mental illness. His
    actions may have been prompted by his displeasure with the accused individuals
    over other relational issues.

(2)

Dr. Gojers
voir dire
evidence

[119]

At the
voir
    dire
, Dr. Gojer testified on examination-in-chief that although he did not
    have the opportunity to examine Hadbai, he could comment on signs and symptoms
    that were reported from collateral sources that would raise the index of suspicion
    about an illness being present. He testified in general terms that hearing
    voices was a diagnostic factor indicative of a mental illness. Asked to assume
    that auditory hallucinations were indicative of schizophrenia, Dr. Gojer was
    asked about the effects certain drugs might have on such a person. Dr. Gojer
    confirmed there were a variety of hypotheses as to what may have predisposed
    Hadbai to behave in an aggressive, violent, unpredictable manner at the time of
    his death, including acting that way independent of any mental illness.

[120]

On
    cross-examination, Dr. Gojer stated that in the absence of longer-term evidence
    about Hadbais behaviour and symptoms, he could not diagnose him as
    schizophrenic. Dr. Gojer stated he would not see the voice described by Hadbai
    as a command hallucination, just as a laughing voice. He agreed that nothing
    he was made aware of showed Hadbai was suffering from voices commanding him to
    be aggressive. Dr. Gojer stated that if the question was whether Hadbai had
    some signs of mental illness, Id say you dont need to be an expert to conclude
    that. His cross-examination concluded with the following exchange:

Q: But you arrive at halfway down the page nine of what you
    have a number of working hypotheses that might, could be the case, might be the
    case, possibly the case, may be the case, but nothing that you can point to and
    say as a doctor, as an expert providing an opinion in court, Here is what it
    is?

A: If youre asking me for that level of precision? No. I can
    only talk to you in more general terms that a mental illness was at play and I
    can give you the differential diagnosis.

Q: Well, in fact, sir, do you not allow at page 10 that mental
    illness might not even been at play? There mightve been something about what
    was happening that caused people to react in a certain fashion without the
    overlay of any form of mental illness?

A: Well, I mean, in my mind, the probability of the mental
    illness being present is very high, but there could be other reasons other than
    a mental illness for this behaviour.

Q: Okay. And at the end of the day, sir, you just cannot tell,
    you can offer no comfort to the jury as an expert about what was at play in
    relation to how things were unfolding?

A: Well, I mean, I dont have all the evidence and Im very
    limited as a psychiatrist, and I think thats a decision for His Honour to
    make, because I can only tell you what my psychiatric evidence is.

C.

The trial judges ruling

[121]

The trial judge
    gave brief oral reasons excluding Dr. Gojers proposed evidence on the basis it
    did not meet the criteria set out in
R. v. Mohan
, [1994] 2 S.C.R. 9;
    they were followed by detailed written ones.

[122]

In his written
    ruling, the trial judge was guided by a consideration of the four
Mohan
factors  relevance, necessity, the absence of any exclusionary rule, and a
    qualified expert. The trial judge expressed concerns about the factual
    foundation of Dr. Gojers evidence:

[H]ere we have an opinion that is based on assumptions related
    to conjecture and hypothesis, with a limited, perhaps ill-founded, factual
    basis. Dr. Gojer did not hear the witnesses, he was not provided with
    transcripts, or objective medical reports, rather, has been furnished with
    counsels notes and disclosure materials.

[123]

The trial judge
    concluded, at paras. 50, 53 and 54 of his reasons, that Dr. Gojers evidence
    was marginally relevant, not necessary and did not pass a cost-benefit
    analysis:

It seems to me that expert evidence is not required to explain
    or elaborate on the obvious. A jury can draw [its] own conclusions as to
    whether the deceaseds predisposition or character, aggression or observations
    of his mental health will afford some evidence with respect to the defence of
    self-defence, provocation or another issue. From the cross-examination of this
    expert, his opinion of possible psychiatric or psychological illnesses not
    being diagnostically supported with due consideration to the criteria in the
    DSM 5 manual is troublesome. Dr. Gojer also agreed that he has no information
    and the deceaseds mental state on the day in question may not be in sync with
    his longitudinal history.



The proposed expert evidence is of marginal relevance and is
    not reliable. The jury does not require any psychiatric impressions offered by
    Dr. Gojer to address the symptoms described by him in his report and already
    adduced in evidence during this trial. The jury has heard all of this testimony
    first-hand and do not require an expert to interpret what they may or may not
    accept from the various witnesses observations of the deceased on some prior
    occasions.

In the exercise of my residual discretion, and the cost benefit
    analysis described in
Mohan
, at this stage I have concerns that the
    potential expert opinion is speculative, unreliable and may attract
    disproportional weight, dressed up in scientific language and submitted through
    a witness of impressive antecedents. The evidence is apt to be accepted as
    being virtually infallible and as having more weight than it deserves. The
    opinion evidence may also confuse the jury, unduly protracting the proceedings,
    and is unhelpful.

D.

The governing legal principles

[124]

Expert opinion
    evidence is presumptively inadmissible consisting, as it does, not of
    statements by a witness of what he or she saw, heard, felt or did, but of a
    statement, based on experience and training, about a ready-made factual
    inference that should be drawn from a body of facts:
R. v. Abbey
, [1982]
    2 S.C.R. 24, at p. 42;
R. v. Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330, at
    para. 71. The factual inference-drawing that lies at the heart of expert
    opinion evidence has the real potential, as Doherty J.A. put it in
Abbey
,
    at para. 71, to swallow whole the fact-finding function of the court,
    especially in jury cases. Yet, expert opinion evidence often is necessary in a
    criminal case, so the judicial challenge is to control properly its admission,
    presentation to, and use by the jury:
Abbey
(Ont. C.A.), at para. 73.

[125]

The judicial
    admissibility control process is described as involving two steps: (i)
    assessing whether the preconditions to admissibility set down in
Mohan
have been met, and (ii) deciding whether expert evidence that meets the
    preconditions to admissibility is sufficiently beneficial to the trial process
    to warrant its admission despite the potential harm to the trial process that
    may flow from the admission of the expert evidence:
Abbey
(Ont. C.A.),
    at para. 76;
White Burgess Langille Inman v. Abbot and Hamilton Co.
,
    [2015] 2 S.C.R. 182, 2015 SCC 23, at paras. 23 and 24.

[126]

The second step
    engages the trial judges gatekeeper function and requires the exercise of
    judicial discretion by identifying and weighing competing considerations to
    decide whether, on balance, those considerations favour the admissibility of
    the evidence:
Abbey
(Ont. C.A.), at para. 79.

[127]

A trial judges
    gatekeeper assessment of the costs and benefits of admitting expert opinion
    evidence is entitled to deference on appeal, absent an error of law in the
    admissibility analysis:
R. v. D.D
., 2000 SCC 43, [2000] 2 S.C.R. 275,
    at para. 13;
Abbey
(Ont. C.A.), at para. 97.

E.

Analysis

[128]

Phillips
    acknowledges the trial judge identified the correct legal principles to guide
    his assessment of the admissibility of Dr. Gojers expert evidence. However, he
    submits the trial judge erred in applying the
Mohan
principles to that
    evidence in several ways: (i) he misapprehended the nature of Dr. Gojers
    opinion; (ii) he erred in concluding Dr. Gojers evidence was of marginal
    relevance; (iii) he erred in holding Dr. Gojers evidence was not necessary;
    and (iv) he erred in conducting his cost-benefit analysis. I am not persuaded
    by these submissions. I will deal with each in turn.

(1)

Misapprehension of the nature of Dr. Gojers opinion

[129]

First, Phillips
    submits, in essence, that the trial judge did not understand the opinion
    expressed by Dr. Gojer. Phillips submits the trial judge misapprehended Dr.
    Gojers evidence in two respects: (i) he failed to understand Dr. Gojer had
    expressed the opinion Hadbai suffered from schizophrenia at the time of his
    death; and (ii) he misread Dr. Gojers report as allowing that Hadbai might
    have acted the way he did at the time of his death for reasons unrelated to his
    mental illness.

[130]

I see no
    misapprehension by the trial judge of the nature of Dr. Gojers opinion in his
    description that Dr. Gojer is offering his psychiatric impressions, neither
    a diagnosis nor a review of the deceased mental health or medical records. In
    his report and during his
voir dire
evidence, Dr. Gojer could not
    opine as to the reason Hadbai acted the way he did on the night of the shooting
     he held out the possibility of both mental health and non-mental health
    related reasons. Dr. Gojer wrote that Hadbais problems could be indicative
    of two psychiatric illnesses, but on cross-examination Dr. Gojer admitted he
    could not opine Hadbai suffered from schizophrenia. The trial judge properly
    understood the limits of the views expressed by Dr. Gojer.

(2)

The conclusion Dr. Gojers evidence was of marginal relevance

[131]

Second, Phillips
    argues the trial judge erred by concluding Dr. Gojers evidence was of
    marginal relevance because he failed to appreciate
Mohans
relevance
    criterion concerns only logical relevance, a low threshold to meet.

[132]

In
Abbey
,
    Doherty J.A. clarified the meaning of relevance in the two-step analysis. He
    proposed that logical relevance  i.e. the evidence has a tendency to make the
    existence of a fact in issue more or less likely  is best considered in the
    first step dealing with preconditions to admissibility. The second aspect of
    relevance - legal relevance - is best reserved for the gatekeeper second step.
    There, a trial judge must be persuaded not only of the logical relevance of the
    evidence, but that it is sufficiently probative to justify admission:
Abbey
(Ont. C.A.), at paras. 82-84.

[133]

I see no legal
    error by the trial judge on the issue of relevance. He was alive to the
    different senses of relevance. The trial judge recognized that evidence of any
    disposition by Hadbai for unprovoked violence was logically relevant to
    defences such as provocation and self-defence, even though Phillips had never
    met Hadbai before the night of the shooting. His reasons disclose that his
    assessment of Dr. Gojers evidence as having only marginal relevance
    reflected his consideration of the lack of probative value of the evidence,
    that is, its legal relevance.

(3)

The holding Dr. Gojers evidence was not necessary

[134]

Third, Phillips
    submits the trial judge erred in holding the necessity criterion was not met because
    expert evidence is not required to explain or elaborate on the obvious, and
    the jury could draw its own conclusions from the evidence about Hadbais
    conduct.

[135]

Again, I see no
    legal error in the trial judges conclusion that would justify appellate intervention.
    Considerable evidence was elicited from witnesses about Hadbais previous
    arguments and fights, his statements about hearing a voice, Jad, and how he
    acted in the parking lot at the time of his fight with OHara-Salmon. Dr. Gojer
    did not offer a diagnosis of Hadbais mental state at the time of the shooting.
    This led the trial judge, during the
voir dire
, to ask Phillips
    counsel why, in light of all the other lay evidence, an expert was required to
    provide an explanation when its a common sense there may be a problem here?
    During his cross-examination, Dr. Gojer effectively answered that question when
    he testified you dont need to be an expert to conclude [Hadbai had signs of
    mental illness]. In light of that evidence, it was open to the trial judge to
    conclude Dr. Gojers evidence did not meet the necessity criterion:
R. v.
    Lovie
(1995), 100 C.C.C. (3d) 68 (Ont. C.A.), at p. 79.

(4)

The trial judges cost-benefit analysis

[136]

Finally, Phillips
    argues the trial judge erred in his cost-benefit assessment of Dr. Gojers
    evidence. Most of Phillips specific submissions simply repeat points
    previously made about the relevance and necessity criteria. But, Phillips also
    submits the trial judge erred in holding the evidence could confuse the jury.
    No confusion could arise, Phillips argues, because Dr. Gojer expressed his
    views in a clear and concise fashion.

[137]

Lack of clarity
    in the expression of an experts view is not the only source of potential jury
    confusion. Lack of certainty about whether the expert is even able to express
    an opinion can equally confuse the jury, leading to a lack of clarity about
    what, if any, ready-made inference the expert is offering for their
    consideration. Here, the trial judge properly questioned whether the expert, in
    fact, was offering any ready-made inference, given the absence in his report
    of any language of opinion or diagnosis about why Hadbai acted the way he did
    on the night of the shooting. As this court stated in
Lovie
, at p. 79,
    [t]he absence of any diagnosis from either [psychiatrist] defies the very
    purpose and function of expert testimony in the fact-finding process.

[138]

I see no legal
    error in the trial judges cost-benefit analysis. In the present case, the
    subject-matter of the opinion evidence was not scientific or technological in
    nature, but concerned human behaviour. In such situations, the trial judges
    judgment call is entitled to deference because it is much more difficult to
    decide whether the opinion will provide information which is likely to be
    outside the experience of the trier of fact, or whether the trier of fact is
    unlikely to form a correct judgment about the matter in issue:
R. v. K.,
    A.
(1999), 45 O.R. (3d) 641 (C.A.), at para. 93, leave to appeal to S.C.C.
    refused, [2000] S.C.C.A. No. 16.

[139]

In sum, I see no
    reason for this court to interfere with the trial judges exclusion of Dr.
    Gojers evidence.

V.

PROVOCATION

A.

The issue stated

[140]

At trial,
    Phillips submitted the partial defence of provocation should be left with the
    jury. The trial judge refused, ruling there was no air of reality to the
    defence. Phillips contends that in so doing the trial judge committed two
    errors. First, the trial judge erred in ruling Phillips primary defence of
    self-defence negated the air of reality for a provocation defence. Second, the
    trial judge erred in concluding there was no direct evidence of each element of
    the defence; in fact, Phillips submits, there was direct evidence on each.

B.

The governing legal principles

(1)

Provocation

[141]

If the
    requirements of the statutory defence of provocation are met, it reduces
    murder, which is an intentional killing, to manslaughter, which is not. The
    requirements are codified in s. 232 of the
Criminal Code
which, at the
    time of the killing,
[1]
provided:

232. (1) Culpable homicide that otherwise would be murder may
    be reduced to manslaughter if the person who committed it did so in the heat of
    passion caused by sudden provocation.

(2) A wrongful act or insult that is of such a nature as to be
    sufficient to deprive an ordinary person of the power of self-control is
    provocation for the purposes of this section if the accused acted on it on the
    sudden and before there was time for their passion to cool.

[142]

The defence of
    provocation is a concession to human frailty. In some circumstances, an accuseds
    unlawful conduct from a loss of self-control, though blameworthy, is
    understandable:
Grant
, at para. 90.

[143]

But, not all
    instances of loss of self-control will be excused because the statutory defence
    of provocation contains both objective and subjective elements. They were
    described in
R. v. Cairney
,
2013 SCC 55
, [2013]
    3 S.C.R. 420, at paras. 33-34, quoting from
R. v. Tran
,
2010 SCC 58
, [2010]
    3 S.C.R. 350:

First, there is a two-fold objective element:  (1) there must
    be a wrongful act or insult; and (2) the wrongful act or insult must be
    sufficient to deprive an ordinary person of the power of self-control:
Tran
,
    at para. 25.

Second, there is a two-fold subjective element:  (1) the
    accused must have acted in response to the provocation; and (2) on the sudden
    before there was time for his or her passion to cool:
Tran
, at
    para. 36.

[144]

Laskin J.A., in
Grant
, explained the objective element of the defence at para. 91:

The objective element of the defence, with its focus on the
    ordinary person, is meant to reflect contemporary societys values. As
    Charron J. said in
Tran
, at para. 30: [B]ehaviour which
    comports with contemporary societys norms and values will attract the laws
    compassion. The ordinary person, as Lord Diplock explained in
D.P.P
    v. Camplin
, [1978] A.C. 705 (H.L.), means an ordinary person of
    either sex, not exceptionally excitable or pugnacious, but possessed of such
    powers of self-control as everyone is entitled to expect that his fellow
    citizens will exercise in society as it is today. And as McLachlin C.J.C. said
    in
Cairney
, at para. 40, a certain threshold level of
    self-control is always expected of the ordinary person [T]he standard should
    not be adapted to accommodate a particular accuseds innate lack of
    self-control.

(2)

The air of reality test

[145]

The air of
    reality test enunciated
Cinous
was succinctly summarized by this court
    in
Grant
, at para. 58:

In
Cinous
, McLachlin C.J.C. and Bastarache J.,
    writing jointly, elaborated on how the air of reality test should be applied.

·

The trial judge should consider all the evidence but assume the
    evidence relied on by the accused is true. The trial judge should not make
    findings of credibility.

·

The air of reality test applies to each element of a defence. As
    long as each element is supported by some direct evidence, or may be inferred
    from circumstantial evidence, the trial judge must put the defence to the jury.

·

The trial judge should not decide the substantive merit of the
    defence, or even whether the defence is likely or not likely to succeed.
    Whether the defence has merit is for the jury to decide. The trial judge should
    simply determine whether there is a real issue that should be left for the
    jury.

·

If the defence has an objective reasonableness component  as
    self-defence does  that component cannot be established by direct evidence.
    The trial judge must decide whether it can reasonably be inferred from
    circumstantial evidence; that is, evidence from which the fact in issue can be
    inferred.

·

To assess whether circumstantial evidence is reasonably capable
    of supporting the inferences the accused wants the jury to draw, the trial
    judge is entitled to engage in a limited weighing of the evidence.

C.

The trial judges ruling

[146]

In holding a
    partial defence of provocation for Phillips had no air of reality in the
    circumstances of this case, the trial judge stated:

In my view, to determine whether there was an actual loss of
    self-control to a requirement of suddenness has two dimensions. The wrongful
    act or insult must be sudden, in that the accused is subjectively unprepared
    for and is caught by surprise, and two, the accused must kill on the sudden
    before there is time for his passion to cool

Here, [I] must consider whether the accused was temporarily
    deprived of the power of self-control as a result of which he committed the
    unlawful act causing death.

I am not convinced that there is direct evidence on this issue
    of provocation, therefore, I must have regard to the nature of the act, the
    time lapse between the provocation and the accuseds conduct during that
    interval, and all of the other circumstances tending to show Mr. Phillips
    state of mind.

Based on the totality of the evidence, including the timing of
    the events, Mr. Hadbais actions according to Mr. Phillips, specifically the
    testimony from Mr. Phillips as to his intentions, his claim of self-defence,
    and his reaction and response in [conjunction] with the entirety of the
    circumstances, in my opinion there is a real doubt as to whether the air of
    reality test is met, and as such the defence of provocation ought not to be
    left with the jury.

D.

Analysis

(1)

First ground of appeal: The availability of provocation in light of the
    primary defence of self-defence

[147]

There is no rule
    against putting to a jury an alternative defence that appears incompatible with
    the primary defence. The issue is not whether such an alternative defence is
    compatible or incompatible with a primary defence, but whether the alternative
    defence meets the air of reality test:
R. v. Gauthier
, 2013 SCC 32, [2013]
    2 S.C.R. 403, at para. 34.

[148]

I do not accept
    Phillips characterization of the trial judges ruling as one holding that the
    primary defence of self-defence negated the air of reality for a provocation
    defence. As is apparent from the trial judges ruling, the assertion by
    Phillips of a primary defence of self-defence was only one of several factors leading
    the trial judge to conclude the partial defence of provocation did not have an
    air of reality. The trial judge did not err by taking self-defence into account
    as a factor. The nature of the primary defence can factor into the air of
    reality assessment of another defence:
R. v. Doucette
, 2015 ONCA 583, 328
    C.C.C. (3d) 211, at paras. 30-31.

(2)

Second ground of appeal: Direct evidence of each element

[149]

Phillips next
    submits the trial judge erred in holding there was no direct evidence of any
    element of the provocation defence. He argues there was some direct evidence of
    each element:

·

a wrongful act or insult
: Phillips testified
    Hadbai ran towards O'Hara-Salmon and himself with what Phillips thought was a
    gun;

·

the act being sufficient to deprive the ordinary person
    of the power of self-control
: although there was no evidence of anger
    on the part of Phillips, a loss of self-control due to excitement or a
    combination of many emotions, including fear and anger, can meet the
    requirements of the defence:
R. v. Cudjoe
, 2009 ONCA 543, 68 C.R.
    (6th) 86, at para. 101;
R. v. Buziz
, 2013 SCC 27, [2013] 2 S.C.R. 248,
    at para. 13. In the present case, there was evidence of this element of the
    defence as Phillips testified that at the moment of the shooting he feared for
    the lives of O'Hara-Salmon and himself and, as a result, fired the shotgun in a
    panic;

·

a sudden wrongful act
: Hadbai suddenly
    introduced the knife, which Phillips perceived as a gun, into the
    confrontation;

·

acting before regaining self-control
: the
    evidence disclosed there were only seconds between the production of the knife
    and the firing of the shot, leaving no time for Phillips to regain
    self-control.

[150]

On its part, the
    Crown submits there was no air of reality to the partial defence of provocation
    for three main reasons:

(i)

Only Phillips testified to a belief that Hadbai was holding a gun when
    he went towards Phillips and O'Hara-Salmon and that belief was based on
    unreasonable assumptions regarding a connection between Hadbai and KP.
    Consequently, there was no objective wrongful act or insult sufficient to
    deprive an ordinary person of the power of self-control;

(ii)

Phillips statement that he panicked must be read in the larger context
    of his evidence that he deliberately shot the gun to preserve the lives of O'Hara-Salmon
    and himself. Accordingly, Hadbais conduct did not subjectively cause Phillips
    to act in response on the sudden before there was time for his passion to cool;
    and,

(iii)

The totality of the evidence demonstrated Phillips carried the sawed-off
    shotgun for an ongoing unlawful purpose. He testified he was willing to use it
    when the occasion arose and, on his own evidence and that of the other
    witnesses, he deliberately shot Hadbai. Phillips simply chose to step out from
    O'Hara-Salmons side of the circle and shoot Hadbai.

[151]

I am not
    persuaded by Phillips argument. As Doherty J.A. stated in
Doucette
, at
    para. 31, defences are not properly left with the jury if supported only by
    isolated pieces of evidence ripped from the context of the rest of the
    evidence. In my view, that is the nature of Phillips submission. When
    Phillips evidence is read in its entirety and in context with the rest of the
    evidence, it negated the availability of the partial defence of provocation.
    His evidence disclosed that:

·

Phillips
expected
a certain risk  the presence of guns
    when a drug deal involved KP or his friends;

·

He had
prepared
for the risk by carrying a sawed-off
    shotgun for several weeks before the fight across the street from Jacks;

·

He
anticipated the expected
risk might materialize from
    the time he received the get the thing kp is here text. As a result, he
    brought the gun to Jacks where KP was to be given the drugs. He did so because
    he feared KP and wanted to protect his friends;

·

Upon his arrival at Jacks, he understood from Sabourin that KP
    had made gestures in the bar suggesting he had a gun;

·

Phillips crossed the street understanding the opponents of his
    friends in the fight would be KP and his friends;

·

The
risk he anticipated
associated with KP and his
    friends
materialized
. He testified he saw KP go to a car and open the
    trunk, as a result of which he assumed KP was getting a gun. When Hadbai
    brandished an object in his hand, Phillips assumed it was a gun because Hadbai
    had been standing next to KP and he assumed Hadbai was KPs friend; and,

·

Phillips
dealt with the expected risk
by using the
    protection he had carried against it  he discharged the sawed-off shotgun.

[152]

On the totality
    of Phillips own evidence, there was no sudden unlawful act that caused him to
    lose his self-control. On the contrary: he anticipated and prepared for a risk;
    it materialized; and he dealt with it, by using that which he carried to protect
    himself against the risk  the sawed-off shotgun.

[153]

Accordingly,
    Phillips direct evidence offered no support for a provocation
    defence. Nor was there any other evidence that gave the defence an air of
    reality. The trial judge properly refused to leave the defence with the
    jury.

VI.

ROLLED-UP JURY INSTRUCTION

A.

The issue stated

[154]

In a murder
    case, evidence that supplies the air of reality to place a defence,
    justification or excuse before a jury may also be relevant for the jury to
    consider in deciding whether the Crown has proven the mental or fault element
    in murder beyond a reasonable doubt:
Cudjoe
, at para. 103. The device
    by which to draw the jurys attention to such evidence is the rolled-up charge,
    prosaically described as a stew of failed individual defences, justifications,
    or excuses whose ingredients are combined together and left with other relevant
    evidence for jurors to consider cumulatively in deciding whether [the
    prosecutor] has proven the
mental element
essential in murder
    (emphasis in original):
Watts Manual of Criminal Jury Instructions,
2nd
    ed., at p. 1206.

[155]

The purpose of a
    rolled-up charge is to instruct the jury not to take a compartmentalized
    approach to the evidence by considering it only in connection with a discrete
    defence, justification, or excuse. Instead, the trial judge should remind the
    jury they should consider the cumulative effect of all relevant evidence in
    determining the adequacy of the prosecutions proof of the mental or fault
    element in murder beyond a reasonable doubt:
Cudjoe
, at para. 104;
R.
    v. Robinson
, [1996] 1 S.C.R. 683, at para. 59;
R. v. Frase
r
    (2001), 159 C.C.C. (3d) 540 (Ont. C.A.), at para. 25, leave to appeal to S.C.C.
    refused, [2002] S.C.C.A. No. 11.

[156]

Even where the
    partial defence of provocation is not left for the jury, evidence of an
    accuseds anger, excitement or instinctive reactions can have an impact on the
    formation of the requisite intent for murder and must be considered by the jury
    on that issue:
R. v. Bouchard
, 2013 ONCA 791, 305 C.C.C. (3d) 240, at
    para. 62, affd 2014 SCC 64, [2014] 3 S.C.R. 283;
R. v. Singh
, 2016
    ONSC 3739, at paras. 84-85.

[157]

In the present
    case, counsel for both accused requested the trial judge
to
include a rolled-up instruction in his charge. Counsel for OHara-Salmon
    made the request because there is some evidence for the rolled-up charge here
    of provocation, and self-defence, and intoxication. Phillips counsel framed his
    request as one for a rolled-up charge on intoxication and provocation. Crown
    counsel argued it would be confusing, and therefore not appropriate, to suggest
    the intoxication available for OHara-Salmon could somehow be available for
    both accused.

[158]

The trial judge
    ruled that intoxication on behalf of OHara-Salmon would be left for the jury,
    as would self-defence for both accused and, in the result, he gave a form of rolled-up
    charge on intoxication in respect of OHara-Salmon. In his ruling, the trial
    judge continued with respect to Phillips: [I]n my view theres no air of
    reality to provocation. I will not be advancing that to the jury, and there
    will be no rolled-up charge presented.

[159]

On appeal,
    Phillips submits the trial judge erred in failing to include in his charge a
    rolled-up instruction regarding evidence about his drinking and smoking
    marijuana before Lovell drove him to Jacks, self-defence, and provocation. He
    says the failure to give a rolled-up charge deprived him of a route to
    manslaughter.

B.

Analysis

[160]

No word formula
    is mandatory for a rolled-up instruction. As put by Watt J.A. in
R. v.
    Flores
, 2011 ONCA 155, 269 C.C.C. (3d) 194, at para. 157: Substance
    prevails, not form. Key to any such instruction is a direction to consider the
    cumulative effect of the evidence on the state of mind issue without regard to
    any decision about any other issue to which the evidence may also be relevant:
Flore
s,
    para. 157.

[161]

Although the
    trial judge ruled he would not give a rolled-up charge in respect of Phillips,
    his charge on the evidence relevant to assessing Phillips mental state for
    murder and planned and deliberate murder substantively accomplished the purpose
    of a rolled-up charge. This is evident from the following portions of the
    charge. First, in charging the jury on the mental state of Phillips required
    for the offence of murder, the trial judge stated:

You have some evidence about Mr. Phillips
    that he had a buzz on and he consumed some alcohol and smoked one marijuana
    joint, and while you may want to keep that in mind along with your
    consideration of all of the evidence with respect to Mr. Phillips state of
    mind for murder
, the specific instructions I just provided to you on the
    issue of intoxication do not apply to Mr. Phillips.

You should consider all of this evidence that might suggest
    that
Mr. Phillips acted instinctively, in the sudden
    excitement of the moment, without thinking about the consequences of what he
    did
, and without either state of mind necessary to make the unlawful
    killing of Mr. Hadbai murder.



You have the testimony of Mr. Ali, Solano, Yasin and Sabourin
    about what led up to the fight,
Mr. Hadbais demeanour
    that evening, and his subsequent actions. You have the testimony from Mr.
    Phillips.
Clearly, you have differing versions of events from all
    witnesses, including witnesses called by each party as to what occurred just
    prior to the shooting that you will need to reconcile.
You
    will need to consider all of the evidence
.



To determine [OHara-Salmon] and [Phillips] state of mind,
    what he meant to do,
you should consider all the evidence.
You should consider what he did or did not do; how he did or did not do it; and
    what he said or did not say.

You should look at [their] words and conduct before, at the
    time and after the unlawful act that caused Said Hadbais death.
All these things, and the circumstances in which they happened,
    may shed light on [OHara-Salmon] and [Phillips] states of mind at the time
[Emphasis added.]

[162]

Second, in the
    subsequent section of his charge on whether the murder of Hadbai was planned
    and deliberate, the trial judge instructed the jury to consider all the
    evidence, including the appellants state of mind, including any evidence of
    impaired mental state and the effect of any real or imagined provoking words
    or conduct from Said Hadbai or other towards Drai OHara-Salmon and/or Jemaine
    Phillips state of mind:
R. v. Reynolds
(1978), 22 O.R. (2d) 353
    (C.A.), at pp. 364-65.

[163]

In his
    discussion of specific pieces of evidence, the trial judge mentioned the
    evidence about OHara-Salmons consumption of alcohol, but not the evidence
    concerning Phillips. The trial judge did refer to the evidence of Hadbais
    demeanour and actions leading up to the shooting. He concluded by stating:

If you accept the evidence from Mr. Phillips or other witnesses
    who describe provocative conduct by Mr. Hadbai, his friends or KP, some or all
    of these considerations and the entirety of the evidence may leave you with a
    reasonable doubt as to any planning and deliberation.

[164]

Taken together,
    these portions of the charge provided the jury with the functional equivalent
    of a formal rolled-up charge. I see no error by the trial judge.

VII.

IMPROPER SUMMARY OF CROWNS POSITION IN THE CHARGE

A.

The issue stated

[165]

Phillips submits
    that in his summary of the Crowns position in the charge, the trial judge
    unfairly linked the get the thing text with evidence about a connection
    between KP and Hadbai. The issue unfolded in the following way.

[166]

Prior to their
    closing addresses, counsel provided the trial judge with summaries of their
    clients positions for inclusion in the charge. Phillips provided a summary in
    narrative form. Counsel for OHara-Salmon and the Crown filed point-form
    summaries which, after the Crowns closing, the trial judge requested be
    replaced by narrative summaries. Counsel complied.

[167]

In the portion
    of his closing address dealing with the evidence of Brittney Knowles, Crown
    counsel stated to the jury:

The suggestion put to Ms. Knowles by Mr. Hicks in cross-examination
    was this: Question: And KP, you know what that stands for? And she says, right.
    And he says, Kurdish Pride in general or sometimes Kurdish Prince? And she
    says, I dont know Kurdish Prince. I think its Kurdish Pride though. And its
    obvious that other than the fact both Said Hadbai and this KP individual were
    both of  Im going to put it in quotation marks because this is how it was
    described by other people, Middle-Eastern descent. Phillips himself and other
    defence witnesses spoke about that. Other than that being some form of a common
    denominator, there was no evidence of any association by Said Hadbai with this
    man, KP It wasnt even put to witnesses that somehow Said was engaged in drug
    dealing, gun toting activity that he was also a party to the activities of the
    man described as KP And so when the text message is sent, get the thing, KP is
    here, weve heard from Mr. Phillips that he made a loose and sweeping
    assumption that Said was somehow associated with KP because of their being both
    of Middle-Eastern descent. And there is some comfort taken from the notion that
    Said, although its obvious both had been at the same bar that night, is in no
    way connected to any association with this man by the name of KP.

[168]

In his charge,
    the trial judge included the following language, received from the Crown, in
    his summary of the Crowns position:

Drai sent a text message to Jemaine telling him to Get the
    thing. KP is here. The Crowns theory is that the thing means the gun. This
    is supported by the use of the term the thing by Phillips and defence
    witnesses both when speaking to police and when testifying at trial. It is also
    supported by the fact that after Phillips gets this text message, he brings the
    gun with him downtown and meets up with Drai OHara-Salmon, who is waiting for
    them.
The expression KP is here is a loose association, a
    sweeping assumption that because both are of Middle-Eastern descent, that
    somehow Said is connected to KP
[Emphasis added.]

[169]

Following the
    charge, Phillips submitted the underlined portion of the summary of the Crowns
    position was unfair and prejudicial in two ways: (i) it put forth a position
    not taken by Crown counsel in his closing address; and (ii) it suggested the
    reference to KP in the text message was a reference to Hadbai as both were Middle-Eastern,
    thereby advancing a position not previously asserted by the Crown and contrary
    to the basis upon which the trial had proceeded, namely that KP was not Hadbai.
    Phillips asked the trial judge to declare a mistrial or remove the offending
    passage from the written instructions provided to the jury. The trial judge
    refused to do so.

B.

Analysis

[170]

Phillips submits
    the trial judges refusal amounts to reversible error as it enabled Crown
    counsel to change his position after hearing Phillips closing to the jury and
    to assert facts contrary to those agreed upon during the trial, specifically
    that KP was not Hadbai. OHara-Salmon argues additional prejudice arose because
    the jury was erroneously invited to link the get the thing text with the
    shooting.

[171]

I do not accept
    these submissions. First, a comparison of the Crowns closing and the portion
    of the charge reproduced above discloses the summary of the Crowns position
    included in the charge reflected that advanced by the Crown in its closing.
    There is no basis for the assertion the Crown somehow gained an advantage by
    expanding or changing its position through the charges summary.

[172]

Second, neither
    the Crowns closing nor the summary of its position included in the charge
    purported to change the trials operating premise that KP was not Hadbai. What
    both did was to reflect Phillips evidence that he connected Hadbai with KP.
    That connection was central to the self-defence and provocation defences
    Phillips advanced or attempted to advance at trial. Without it, Phillips
    concerns about KPs conduct had no relevance to his perception of Hadbais
    conduct, including whether Hadbai was holding a gun.

[173]

Several times
    during his evidence, Phillips testified that he assumed Hadbai was a friend of
    KP. One reason for his assumption emerged during the following exchange towards
    the end of his cross-examination:

Q: You made a sweeping assumption that because [Hadbai] was of
    Middle-Eastern descent, you thought he was associated with KP, and because of
    an assumption that KP might have a gun, and as a result you shot him the chest?

A: Yes, because he was running towards me

Q: Okay.

A:  with somethin I thought was a gun.

[174]

Finally, in
    response to OHara-Salmons complaint about the reference to the get the
    thing text, the Crown submits on appeal that [i]n the context of how the
    defence developed the issue and the entirety of the submissions, there is no
    basis for complaint about this portion of the Crown summary. Read as a whole it
    consistently tracked the Crown theory advanced in more detail in the closing
    proper. I accept this submission; it accurately reflects the record before the
    trial judge.

[175]

Accordingly, I
    give no effect to this ground of appeal.

VIII.

IMPROPER
    INSTRUCTIONS IN THE CHARGE ABOUT THE USE OF THE IM PROB GANNA GET SHOT TEXT
    SENT BY HADBAI

A.

The issue stated

[176]

Both appellants
    submit the trial judge erred in instructing the jury about the use it could
    make of the text message sent by Hadbai to his girlfriend, Gorges, about 10
    minutes before the parking lot fight: Im prob ganna get shot can u wait plz.

[177]

In a pre-trial
    ruling, the trial judge held that:

The text message and the evidence surrounding this statement is
    non-hearsay and, therefore, admissible as circumstantial evidence of the
    deceaseds state of mind or present intention prior to being shot. It is not
    admissible for the truth of its contents to establish that the acts or events
    referred to in the statement actually occurred and the jury will be so advised
    at the appropriate time.

[178]

During the
    testimony of Gorges, the recipient of the text, the trial judge instructed the
    jury about the use they could make of the text:

That evidence can only assist you with respect to the state of
    mind of a declarant and not for the truth of the contents or the facts asserted
    in that text message. You may only use it to assist you with the state of mind
    or present intention of the sender, the declarant, in this case Said Hadbai,
    and only for that purpose.

[179]

The trial judge
    specifically dealt in his charge with the use the jury could and could not make
    of this text. He stated:

Should you choose to accept the text message of Mr. Hadbai as
    related through Ms. Gorges testimony in conjunction with the actual text
    message itself, as I instructed you during the course of this trial, you may
    only use this statement for the limited purposes of assessing Mr. Hadbais
    state of mind or present intention, and what he did or said, or did not do, or
    did not say subsequent to sending the text message. You will recall that
    despite sending the text message, Mr. Hadbai still lingered in the immediate
    vicinity just outside Jacks Bar for at least 15 minutes. Subsequently, Mr.
    Hadbai and his colleagues then followed Mr. OHara-Salmon and Mr. Phillips
    across Richmond Street to the parking lot in anticipation of some altercation.
    You may want to consider the text message in conjunction with Mr. Hadbais
    subsequent actions and the entirety of the evidence.

Again, even if you accept that a certain statement in the text
    message referred to something about to happen, you may not use this evidence
    for the truth of its contents. In other words, it cannot be used for the
    assertion or fact that Mr. Hadbai was probably going to get shot. You must not
    use this evidence to conclude or infer Mr. OHara-Salmons or Mr. Phillips
    intent, actions or states of mind or for any other purpose.

[180]

The appellants
    take no issue with the correctness of these instructions. However,
    OHara-Salmon advances an argument that references made to the text by counsel
    and the trial judge seemingly left it open to the jury to use the text as
    evidence that OHara-Salmon had threatened to shoot the deceased.

B.

Analysis

[181]

OHara-Salmon
    points to portions of the closings by Phillips and the Crown as suggesting the
    jury could use the text for the truth of its contents. He also contends a
    similar suggestion can be teased out of the following statement by the trial
    judge of the Crowns position: After the confrontation with Drai, Said was
    worried that he was probably going to get shot. He sent a text message to his
    girlfriend, Ms. Gorges, indicating that he was probably ganna get shot and
    asked her to wait.

[182]

With respect, I
    see no merit in this submission. The trial judge accurately stated the
    evidence. As to whatever impressions counsel may have left about the text in
    their closings, the trial judge gave clear instructions to the jury following
    those closings about the uses they could and could not make of the text. The
    last words, so to speak, were instructions by the trial judge, the correctness
    of which the appellants do not challenge.

IX.

EFFECT ON PHILLIPS OF THE DECISION CONCERNING THE PARTY LIABILITY OF
    OHARA-SALMON

[183]

In his factum,
    Phillips submits that any error undermining the verdict against OHara-Salmon
    must undermine the verdict against him because the only route to a conviction
    for first degree murder against Phillips was the allegation that OHara-Salmon
    and Phillips had jointly engaged in a planned and deliberate murder. Phillips
    counsel did not elaborate on this submission during oral argument.

[184]

I do not accept
    this brief submission. Towards the end of his charge, the trial judge stated:

In arriving at your verdict, you shall deliberate on each
    accused individually. You shall consider all of the evidence and apply the
    legal principles that I have described to address each accuseds verdict
    separately. The evidence and the issues raised in this case leave four verdicts
    for you to consider with respect to each of Mr. OHara-Salmon and Mr. Phillips:
    not guilty, guilty of manslaughter, guilty of second-degree murder, guilty of
    first degree murder.

[185]

At trial,
    counsel for Phillips did not object to this instruction. Before this court,
    Phillips did not challenge the correctness of this instruction. Consequently, I
    see no basis for this ground of appeal.

X.

CONCLUSION ON PHILLIPS APPEAL

[186]

For the reasons
    set out above, I would dismiss Phillips appeal.

PART 3  OHARA-SALMONS APPEAL

I.

THE ISSUES ON OHARA-SALMONS APPEAL

[187]

On his appeal,
    OHara-Salmon raises several issues distinct from those raised by Phillips. He
    identifies the following discrete grounds of appeal:

(i)

The trial judge failed to instruct the jury properly on the elements of
    being a participant under ss. 21(1) or (2) to the offence charged, including
    erring in defining murder;

(ii)

He refused to relate the
W.(D.)
analysis for Phillips evidence
    in assessing the guilt of OHara-Salmon:
R. v. W.(D.),
[1991] 1 S.C.R.
    742;

(iii)

He failed to explain how the evidence related to the law; and,

(iv)

The verdict was unreasonable.

[188]

As well,
    OHara-Salmon adopts Phillips submissions concerning self-defence,
    provocation, the failure to give a rolled-up charge, the get the thing text,
    and the Im prob ganna get shot text. I have set out above how I would dispose
    of those grounds on Phillips appeal; my conclusions apply equally to
    OHara-Salmons appeal.

II.

THE CHARGE CONCERNING OHARA-SALMONS PARTICIPATION IN THE OFFENCE OF
    FIRST DEGREE MURDER UNDER SS. 21(1)(B) AND (C) AND 21(2) OF THE
CRIMINAL
    CODE

A.

Section 21(1)(b) and (c): Aiding and abetting

(1)

The issue stated

[189]

The Crown did
    not allege O'Hara-Salmon was guilty of first degree murder as a principal who
    actually committed the offence. Instead, the Crown alleged he was a party to
    the offence of first degree murder either as an aider or abettor under ss.
    21(1)(b) or (c), or on the basis of common intention under s. 21(2). The trial
    judge charged the jury accordingly.

[190]

OHara-Salmon
    submits the trial judge made two errors when charging the jury on the issue of
    aiding or abetting under ss. 21(1)(b) and (c) of the
Criminal Code
. He
    argues the trial judge:

(i)

failed to explain that aiding or abetting could lead to a conviction for
    manslaughter, or that OHara-Salmon could be found guilty of a less serious
    offence than Phillips; and

(ii)

failed to define the
mens rea
required to prove OHara-Salmon
    aided or abetted Phillips in committing first degree murder. Specifically, he
    failed to instruct the jury the Crown had to prove, beyond a reasonable doubt,
    that OHara-Salmon aided or abetted Phillips knowing Phillips intended to
    commit a planned and deliberate murder. Instead, the trial judge erroneously
    instructed the jury to consider whether OHara-Salmon, himself, had the
    required
mens rea
for murder or planned and deliberate murder.

[191]

In response, the
    Crown submits the trial judge carefully and correctly defined the elements of
    aiding and abetting. He correctly stated the required
mens rea
consisted of the need to establish OHara-Salmon knew Phillips intentions and
    he intended to help or encourage Phillips. Throughout, the trial judge
    emphasized the need for the Crown to prove OHara-Salmon was a party beyond a
    reasonable doubt.

[192]

For the reasons
    below, I would not accept OHara-Salmons submissions.

(2)

The governing legal principles

[193]

Section 21(1) of
    the
Criminal Code
defines party liability as follows:

21(1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose
    of aiding any person to commit it; or

(c) abets any person in committing it.

[194]

A person may be
    found guilty of first degree murder as a secondary participant in a planned and
    deliberate murder:
R. v. Almarales
, 2008 ONCA 692, 237 C.C.C. (3d) 148,
    at para. 68.

[195]

The
actus
    reus
and
mens rea
for aiding and abetting are distinct from those
    of the principal offence:
R. v. Briscoe
, 2010 SCC 13, [2010] 1 S.C.R.
    411, at para. 13. The
actus reus
consists of doing or, in some
    circumstances, omitting to do something that assists or encourages the
    perpetrator to commit the offence:
Briscoe
, at para. 14.

[196]

The
mens rea
for aiding has two components: intent and knowledge. The Crown must prove the
    aider (i) intended to help the principal commit the offence and (ii) knew that
    the principal intended to commit the offence, although the Crown need not prove
    that the aider knew precisely how the principal would commit the offence:
Briscoe
,
    at paras. 16-17. An aider can only intend to assist the perpetrator in the
    commission of the crime if the aider knows the crime that the perpetrator
    intends to commit:
R. v. Maciel
, 2007 ONCA 196, 219 C.C.C. (3d) 516, at
    para. 88, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 258.

[197]

In respect of a
    charge of first degree murder, this court in
Almarales
described, at
    para. 70, the fault requirement the Crown must prove:

An aider must
know
that the principal
    intends to commit a planned and deliberate murder, and
intend
to
    help the principal to commit a planned and deliberate murder. The aider may
    acquire his or her knowledge that the murder is planned and deliberate through
    actual participation in the planning and deliberation, or by some other means.
    The means of acquiring knowledge are as irrelevant to culpability as proof of
    knowledge is essential to it.
Maciel
at para. 89. [Emphasis
    in original.]

See also:
R.
    v. Bottineau
, [2006] O.J. No. 1864 (S.C.),
    at para. 93, affd 2011 ONCA 194, 269 C.C.C. (3d) 227, leave to appeal to
    S.C.C. refused, [2011] S.C.C.A. No. 455;
R. v. Haché
, 2007 NBCA 79, 227 C.C.C. (3d) 162,

per Drapeau C.J., dissenting, at para. 32.

[198]

In
Briscoe
,
    the Supreme Court clarified, at para. 16, that the purpose requirement
    contained in s. 21(1)(b) does not incorporate the notion of desire into the
    fault requirement for party liability. As a result, there is no additional
    requirement that an aider or abettor subjectively approve of, or desire, the
    victims death. The court cautioned, at para. 18, against misreading its
    earlier statement on this point in
R. v. Kirkness
, [1990] 3 S.C.R. 74:

While some of the language in
Kirkness
may
    be read as requiring that the aider share the murderers intention to kill the
    victim, the case must now be read in the light of the above-noted analysis
    in
Hibbert
.
The perpetrators intention to
    kill the victim must be known to the aider or abettor; it need not be shared.
Kirkness
should
    not be interpreted as requiring that the aider and abettor of a murder have the
    same mens rea as the actual killer.
It is sufficient that he
    or she, armed with
knowledge
of the perpetrators intention
    to commit the crime, acts with the intention of assisting the perpetrator in
    its commission. It is only in this sense that it can be said that the aider and
    abettor must intend that the principal offence be committed. [Italics in
    original; underlining added.]

(3)

Analysis

(a)

First ground of appeal: The trial judge failed to leave manslaughter as
    an available verdict

[199]

O'Hara-Salmon
    submits the trial judge erred in his charge by failing to explain that aiding
    or abetting could lead to a conviction for manslaughter.

[200]

I do not accept
    this submission. The trial judge clearly instructed the jury that aiding or
    abetting could lead to a conviction for manslaughter.

[201]

Where an
    accuseds liability for first degree murder rests on secondary participation,
    the trial judges final instructions must leave the jury with a clear
    understanding of what the prosecution has to prove to establish the persons
    guilt as an aider or abettor of first degree murder. In assessing whether the
    final instructions meet these objectives, consideration must be given not only
    to the charge, but to the decision trees provided to the jury:
Almarales
,
    at para. 86.

[202]

In the present
    case, the trial judge prepared separate decision trees to assist the jury in
    their deliberations of the culpability of each appellant. In the case of
    O'Hara-Salmon, the trial judge structured his instructions to deal first with
    participation as a party under ss. 21(b) and (c) of the
Criminal Code
.
    If the jury concluded participation as a party via those modes was not
    established beyond a reasonable doubt, the charge  accompanied by the trial
    judges references to the decision tree  required them to consider
    participation under s. 21(2). In his summary of the s. 21(1) issues, the trial
    judge made clear that a verdict of manslaughter was one possible outcome of the
    jurys consideration of O'Hara-Salmons participation.

[203]

Similarly, in
    his charge the trial judge explained that should the jury find O'Hara-Salmon
    aided or abetted Phillips in unlawfully causing Hadbais death, they were
    required to consider what he styled as Question 3: Did O'Hara-Salmon have the
    state of mind required for murder as a party to the offence? The trial judge
    specifically included the words as a party to the offence in response to
    submissions by O'Hara-Salmons counsel during a pre-charge conference. The
    charge, and the decision tree, clearly instructed that if the jury found
    O'Hara-Salmon did not have such a state of mind, O'Hara-Salmon would not be
    guilty of first degree murder, but guilty of manslaughter.

(b)

Second ground of appeal: The trial judge failed to define the
mens
    rea
for aiding and abetting first degree murder

[204]

O'Hara-Salmon
    submits the trial judge failed to define properly the
mens rea
required to prove he aided or abetted Phillips in committing first degree murder.
    He argues the trial judge erroneously instructed the jury to consider whether
    OHara-Salmon, himself, had the required
mens rea
for murder or
    planned and deliberate murder, instead of determining whether the Crown had
    established OHara-Salmon aided or abetted Phillips knowing Phillips intended
    to commit murder or commit a planned and deliberate murder.

[205]

Before I explain
    why I do not accept this submission, let me dispose of a minor related issue
    OHara-Salmon raises on this matter.

[206]

Prior to giving the
    part of his charge dealing with OHara-Salmon, the trial judge provided the
    jury with a separate decision tree in respect of the charges against
    OHara-Salmon. After instructing the jury that they must find O'Hara-Salmon not
    guilty in the event self-defence was established in respect of Phillips, he
    then gave instructions on whether O'Hara-Salmon was a party to Hadbais
    unlawful death. The trial judge instructed, in turn, on the allegations that
    O'Hara-Salmon was culpable as an aider, abettor, or as a participant in a joint
    criminal venture.

[207]

No issue is
    taken on appeal with the trial judges instructions on abetting. In regard to
    his charge on aiding, the trial judge gave standard, general instructions on
    the
actus reus
, the need to demonstrate the aider must intend to help
    the principal, and the requirements to establish the aider knows the principal
    intends to commit an offence.

[208]

In describing
    the offence at issue, the trial judge stated:

Aiding relates to a specific offence, in this case murder.
An aider must intend that the offence be committed
, or
    know that the other person intends to commit it and intends to help that person
    accomplish his or her goal. A person commits an offence if he, alone or along
    with someone else or others, personally does everything necessary to constitute
    the offence. [Emphasis added.]

[209]

As a minor
    point, O'Hara-Salmon argues the trial judge erred by including in his charge
    the phrase: An aider must intend that the offence be committed. I am not
    persuaded by this argument. First, the trial judge included correct
    instructions on the required elements of intention and knowledge: An aider
    must  know that the other person intends to commit it and intends to help that
    person accomplish his or her goal. Second, the additional phrase to which
    O'Hara-Salmon now objects appears to have found its way into the charge as a
    result of a request made by counsel for O'Hara-Salmon at the December 23, 2014
    pre-charge conference, relying on
Kirkness
. Counsel for O'Hara-Salmon
    did not draw the trial judges attention to the passage from
Briscoe
,
    set out above in para. 198, where the Supreme Court clarified how
Kirkness
should be read.

[210]

But, this is a
    minor point. OHara-Salmons main complaint about this part of the charge is
    that the trial judge failed to link the requirements of intention and knowledge
    under ss. 21(1)(b) or (c) to the charged offence of first-degree murder.

[211]

In the portion
    of his charge dealing with ss. 21(1)(b) and (c), the trial judge referred to
    the offence either as murder or as unlawfully causing Hadbais death. The
    trial judge dealt with the issue of O'Hara-Salmons state of mind for murder,
    and planned and deliberate murder, in two subsequent sections of his charge. In
    each, he framed the issue in respect of O'Hara-Salmon as one concerning him as
    a party to the offence. However, in each he instructed the jury using
    language that treated O'Hara-Salmon as a co-principal with Phillips.

[212]

I appreciate
    that by doing so the trial judge set the
mens rea
bar higher than
    necessary. A conviction for first degree murder as an aider or abettor does not
    require demonstrating the accused shared the murderers intention to kill the
    victim. However, several factors lead me to conclude that in the circumstances of
    this case, the trial judges setting of the
mens rea
bar higher than
    necessary did not prejudice O'Hara-Salmon:

·

The trial judge correctly instructed the jury on the two
    components of
mens rea
for aiding or abetting;

·

It was open to the jury to find that O'Hara-Salmon, as an aider
    or abettor, acquired his knowledge that the murder was planned and deliberate
    through actual participation in the planning and deliberation:
Almarales
,
    at para. 70. The jurys verdict indicated it was satisfied beyond a reasonable doubt
    that O'Hara-Salmon had participated in the murders planning and deliberation;

·

The decision tree accompanying the charge first directed the jury
    to consider whether O'Hara-Salmon had the state of mind required for murder as
    a party to the offence and, if he did, to then consider whether his murder of
    Said Hadbai as a party to the offence [was] planned and deliberate. The trial
    judge used that language at the request of O'Hara-Salmons counsel; and

·

While not determinative, it is significant that apart from
    requesting the change to the decision trees language just mentioned, which the
    trial judge made, O'Hara-Salmons counsel did not otherwise object to how the
    trial judge linked the requirements for the
mens rea
of aiding and
    abetting with those for a planned and deliberate murder.

[213]

For these
    reasons, I would not give effect to this ground of appeal.

B.

Section 21(2): Common purpose

(1)

The issue stated

[214]

O'Hara-Salmon
    submits the trial judge made reversible errors in the charge on applying the
    common purpose doctrine in s. 21(2) of the
Criminal Code
. The
    appellants over-arching complaint is that the trial judge made the
    instructions more complicated than necessary and they would have been very
    difficult to follow. OHara-Salmon breaks down his over-arching complaint into
    four discrete submissions. He argues the trial judge:

(i)

made no clear distinction between manslaughter and murder because he
    failed to separate the
mens rea
requirement for manslaughter under the
    common purpose doctrine from that required for murder;

(ii)

failed to provide guidance on the
    elements of the possible offences that were the subject of agreement;

(iii)

gave conflicting instructions on the
    unanimity requirement for common purpose; and

(iv)

failed to instruct that in forming a
    common purpose, the Crown had to prove O'Hara-Salmon knew a planned and
    deliberate murder was the probable consequence of carrying out their original
    purpose.

[215]

In response, the
    Crown submits the trial judge painstakingly and properly instructed the jury on
    the elements of the common intention mode of participation and the evidence
    bearing on the issue.

[216]

For the reasons
    that follow, I would not accept OHara-Salmons submissions.

(2)

The pre-charge conference, ruling, and charge

[217]

The trial judge
    initially did not intend to include in his charge any instruction on the common
    intention mode of participation for O'Hara-Salmon because it lacked an air of
    reality. Crown counsel pressed for its inclusion, advocating a variety of
    firearms offences as the predicate offences for the common purpose. Counsel for
    O'Hara-Salmon contended there was no basis to instruct on s. 21(2) because
    there was no evidence O'Hara-Salmon knew about the gun Phillips carried.

[218]

After the first
    pre-charge conference, the trial judge altered his position and ruled he would
    instruct the jury in respect of O'Hara-Salmons participation under s. 21(2).
    He accepted there were a number of underlying firearms offences in respect of
    which the jury could find O'Hara-Salmon party to a common unlawful purpose. He
    concluded: [G]iven the inferences that can be drawn from the evidence, some of
    which I have already described, Mr. O'Hara-Salmon is capable of being convicted
    of either murder or manslaughter as a party under either s. 21(1)(b), s.
    21(1)(c), or 21(2) of the
Criminal Code
.

[219]

During the
    course of a further pre-charge conference following his ruling, the trial judge
    observed that the evidence on s. 21(2) was thin. I note that O'Hara-Salmon
    does not challenge the trial judges conclusion that there was an air of
    reality to s. 21(2) and, accordingly, his decision to charge the jury under
    this ground of party liability.

(3)

The governing legal principles

[220]

Section 21(2) of
    the
Criminal Code
extends liability to those whose participation in
    the offence actually committed would not be captured by s. 21(1). Section 21(2)
    states:

Where two or more persons form an intention in common to carry
    out an unlawful purpose and to assist each other therein and any one of them,
    in carrying out the common purpose, commits an offence, each of them who knew
    or ought to have known that the commission of the offence would be a probable
    consequence of carrying out the common purpose is a party to that offence.

[221]

The offence to
    which s. 21(2) extends liability is not the original unlawful purpose to
    which the subsection refers; it is a different crime, one that a participant in
    the original unlawful purpose commits in carrying out that original purpose:
R.
    v. Simon
, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 42, leave to appeal
    to S.C.C. refused, [2010] S.C.C.A. No. 459.

[222]

Liability of a
    person under s. 21(2) requires proof of three elements: agreement; offence; and
    knowledge:
Simon
, at paras. 42-43;
R. v. Cadeddu
, 2013 ONCA
    729, 304 C.C.C. (3d) 96, at paras. 56-62.

[223]

A person may be
    found liable for murder under s. 21(2). As this court explained in
R. v.
    Portillo
(2003), 176 C.C.C. (3d) 467 (Ont. C.A.), at para. 72, liability
    for murder under s. 21(2) requires the Crown to prove beyond a reasonable doubt
    that (i) the accused was a party to a common unlawful design, (ii) another
    person who was a party to that same common design committed murder as defined
    in s. 229(a) in the course of carrying out the common design, and (iii) the
    accused knew that murder was a probable consequence of carrying out the common
    unlawful design. This court continued, at para. 73:

If the Crown proves the first two of the three elements
    described above, but fails to prove that the accused knew that murder was a
    probable consequence of carrying out the common design, the accused is not
    guilty of murder but is guilty of manslaughter if a reasonable person would
    have foreseen the risk of harm to the deceased as a result of carrying out the
    common design to steal from him:
R. v. Jackson
, [1993] 4 S.C.R. 573.

[224]

The mental
    elements for liability under s. 21(2) are the formation of an intention in
    common, an intention to assist, and knowledge that the principal offender would
    probably commit murder:
R. v. Ferrari
, 2012 ONCA 399, 287 C.C.C. (3d)
    503, at para. 62. As this court stated in
R. v. Jackson
(1991), 68
    C.C.C. (3d) 385 (Ont. C.A.), at p. 424:

Where, however, liability is based on s. 21(2), there is
    no participation in the act which caused death but rather foresight that
    another would commit such an act. Culpability for the incidental offence flows
    almost entirely from foresight that that offence would be committed by another.

[225]

To leave for the
    jurys consideration the liability of a person under s. 21(2) requires some
    evidence of the basis on which a reasonable jury, properly instructed, could
    make the findings of fact necessary to establish each element of this mode of
    participation:
Simon
, at para. 43. Further, a proper instruction
    requires the trial judge to explain each of the three elements  agreement,
    offence and knowledge  and relate the evidence to those elements:
Cadeddu
,
    at para. 35;
R. v. Gagné
, [1998] Q.J. No. 580 (C.A.), at para. 17.

[226]

When s. 21(2) is
    engaged for the offence of murder, s. 7 of the
Canadian Charter of
    Rights and Freedoms
requires that the accused must have actual
    knowledge that murder would be a probable consequence of the unlawful purpose. A
    conviction for murder cannot be based on the ground that the accused
ought
to
    have known that murder would be a probable consequence:
R. v. Young
,
    2009 ONCA 549, 246 C.C.C. (3d) 417, at para. 6, leave to appeal to S.C.C.
    refused, [2009] S.C.C.A. No. 462;
Ferrari
, at para. 61;
R. v.
    Logan
, [1990] 2 S.C.R. 731, at pp. 747-48.

[227]

Against the
    background of these general principles, I shall consider the four submissions
    made by O'Hara-Salmon.

(4)

Analysis

(a)

The trial judge failed to distinguish between available verdicts for
    manslaughter and murder under s. 21(2)

[228]

O'Hara-Salmon
    submits the trial judge did not separate the
mens rea
required for
    manslaughter under the common purpose doctrine from that required for murder.
    More specifically, he contends the trial judge never clarified that one of the
    knowledge elements in s. 21(2) related to a manslaughter conviction and the
    other to a murder conviction.

[229]

I disagree. In
    his charge, the trial judge clearly explained that the alternative knowledge
    elements under s. 21(2)  who knew or ought to have known  engaged an
    assessment of two different types of foresight: subjective and objective. He
    also explained that different verdicts were available under each: It is
    important to understand that for an intention in common, depending on your
    conclusions as to the subjective knowledge or objective probable and
    foreseeable consequences, the final verdicts will differ.

[230]

He instructed
    the jury that should they find culpability established under the objective
    foresight branch of s. 21(2)  ought to have known - they could not convict
    of murder, but only of manslaughter. The decision tree provided by the judge to
    the jury clearly tracked these instructions.

(b)

The trial judge failed to provide guidance on the elements of the
    possible offences that were the subject of agreement

[231]

In his charge,
    the trial judge instructed the jury that the common unlawful purpose:

[C]ould encompass a whole host of firearms-related offences,
    including but not limited to possession of a weapon for a dangerous purpose,
    use of a firearm in the commission of an indictable offence, careless use of a
    firearm, pointing a firearm, carrying a concealed weapon or possess a loaded
    prohibited firearm with ammunition.

[232]

O'Hara-Salmon
    submits that by not providing guidance on the elements of the predicate
    offences, the trial judge erred by confusing the jury because they would not
    understand the Crown had to show O'Hara-Salmon actively formed an agreement
    with Phillips to carry the weapon.

[233]

I do not accept
    this submission. First, the detail with which a trial judge must describe the
    predicate offences will vary with the circumstances.
Watts Manual of
    Criminal Instructions,
2d ed., merely suggests, at p. 460, describe
    briefly common unlawful purpose.

[234]

Second, trial
    counsel for O'Hara-Salmon did not object to the charge on the basis that a
    failure to describe the predicate offences in depth would confuse the jury. To
    the contrary, he argued that leaving the common purpose mode to the jury
    strained the structure of s. 21(2) in part because of the simple nature of the
    predicate offence  We have a simple possession of a firearm  We just have
    the possession of a firearm.

[235]

Finally, the
    evidence available for the jury to consider about the predicate offences was
    not complex: Phillips possessed an illegal firearm, the sawed-off shotgun; he
    took the gun with him in Lovells car; Lovell drove him to Jacks;
    O'Hara-Salmon got into the car; Phillips and O'Hara-Salmon left the car and
    walked down the alleyway; Phillips had the gun in his pant leg; they paused at
    the end of the alley; then crossed the street to the parking lot, where
    O'Hara-Salmon was to fight Hadbai; the fight started; Phillips pulled out the
    sawed-off shotgun and killed Hadbai. In those circumstances, there was no need
    for the trial judge to describe the elements of the predicate offences in depth
    in order for the jury to understand the nature of the unlawful common purpose
    available for them to consider.

(c)

The trial judge gave conflicting instructions on the unanimity
    requirement for common purpose

[236]

O'Hara-Salmon
    next submits the trial judge gave conflicting instructions on the unanimity
    required to find him culpable via s. 21(2). In one part of his charge, the
    trial judge stated the jury did not have to all agree whether Mr.
    O'Hara-Salmon aided, abetted or had an intention in common with Mr. Phillips,
    while elsewhere he instructed that the jury had to be unanimous in your
    decision beyond a reasonable doubt of the intention to commit a common unlawful
    purpose in order to find Mr. O'Hara-Salmon guilty of an offence.

[237]

I do not accept
    this submission. When the charge is read as a whole, the trial judge clearly
    informed the jury that if they found O'Hara-Salmon committed the offence in
    more than one way, they did not all have to agree guilt had been proven in the
    same way. At the start of the section on s. 21, the trial judge charged the
    jury: Crown counsel is entitled to rely on different ways of committing the
    offence. Proof of any way will do. He repeated that instruction several times.
    He also stated: All of you do not have to agree on the same way, as long as
    everyone is sure that one of the required ways has been proven beyond a
    reasonable doubt.

[238]

The comment
    impugned by O'Hara-Salmon was made during the course of the trial judges
    review of the various steps described in the decision tree dealing with party
    liability. His review implied the jury had rejected one mode of participation,
    but could then proceed to consider another. This part of his charge was
    prefaced with the following clear instruction:

In summary, in your consideration of whether Mr. O'Hara-Salmon
    was a party to the offence, you do not have to all agree whether Mr.
    O'Hara-Salmon aided, abetted or had an intention in common with Mr. Phillips,
    as long as you all agree that he either aided, abetted or had an intention in
    common with Mr. Phillips in the unlawful killing of Mr. Hadbai.

[239]

Accordingly, I
    see no error in this part of the charge.

(d)

The trial judge failed to provide a proper instruction where the offence
    alleged was first-degree murder

[240]

Lastly,
    O'Hara-Salmon submits the trial judge failed to instruct the jury that to
    establish liability for first degree murder pursuant to s. 21(2) the Crown must
    prove that, in forming a common intention with Phillips to commit one unlawful
    act, the accused must know a planned and deliberate murder was the probable
    consequence.

[241]

At trial,
    counsel for O'Hara-Salmon did not raise such an objection. Instead, he focused
    on ensuring the charge on s. 21(2) made available for consideration a verdict
    of manslaughter. Although not determinative of this issue, the absence of such
    an objection is telling.

[242]

The trial judge
    instructed the jury on both the subjective and objective foreseeability
    branches of knowledge contained in s. 21(2). At the start of his charge on the
    knowledge requirement, the trial judge stated:

Now the third element, knowledge, may be proven in either of
    two ways. Crown counsel may prove beyond a reasonable doubt that Drai O'Hara-Salmon
    actually knew that one of the participants in the original agreement, Jemaine
    Phillips, would probably murder Said Hadbai in carrying out their original
    agreement. Probably means likely, not just possibly.

[243]

To illustrate
    this element, the trial judge presented the jury with an example of a situation
    where the participant would be guilty of second degree murder. He continued:

To determine whether knowledge has been proven on this basis,
    you should ask yourselves whether you are satisfied beyond a reasonable doubt
    that if there was an intention in common in the unlawful agreement, Mr. O'Hara-Salmon
    knew Mr. Phillips possessing a loaded shotgun, would foresee that the murder of
    Said Hadbai was a probable consequence.

[244]

The trial judge
    repeated similar language several times, in each case framing the inquiry as to
    whether O'Hara-Salmon subjectively foresaw that murder was a probable
    consequence of carrying out the common intention.

[245]

Given that
    O'Hara-Salmon was charged with the offence of first degree murder, it would
    have been preferable for the trial judge to refer specifically to that offence
    in this part of his charge. However, as the charge progressed the trial judge
    constantly referred to the decision tree to explain to the jury the state of mind
    necessary to find O'Hara-Salmon guilty of murder (Box 3 of the decision tree)
    or a planned and deliberate murder (Box 4). When the charge is considered
    together with the decision tree, I am satisfied the jury would have understood that
    the Crown had to prove beyond a reasonable doubt that O'Hara-Salmon subjectively
    knew that a
planned and deliberate murder
was a probable consequence
    of carrying out the common unlawful design in order to convict him of first
    degree murder.  Accordingly, I would not give effect to this ground of appeal.

[246]

Before moving on to deal with the next
    ground of appeal, I will consider a submission made by O'Hara-Salmon at the end
    of his argument on s. 21(2). His main submissions regarding s. 21(2) focused on
    the sufficiency and clarity of the trial judges instructions on the section.
    However, O'Hara-Salmon concluded his s. 21(2) submissions by querying whether
    the section should have been left with the jury on a charge of first degree
    murder.

[247]

O'Hara-Salmon suggested there was an illogicality
    in trying to combine the common purpose doctrine with a planned and deliberate
    consequential murder. He pointed out that some authorities support the view
    that s. 21(2) can be used for a charge of first degree murder:

Gagné
,
    at para. 17
; Bottineau
,
    at paras. 92 and 94
. Other
    cases express a contrary view:
Haché
, at para. 34
; R. v. Hong
, 2015 ONSC 4562, at para. 26
. O'Hara-Salmon observed the issue was a
    source of controversy in the law.

[248]

I would leave the question of whether s.
    21(2) applies to a case in which it has been squarely raised and fully
    argued.  It need not be decided in this case as I have concluded the trial
    judge adequately instructed the jury on the elements of ss. 21(1)(b)/(c) and
    21(2) in respect of the offence of first degree murder. In order to convict on
    first degree murder, the jury was required to be satisfied beyond a reasonable
    doubt that O'Hara-Salmon either knew Phillips intended to commit a planned and
    deliberate murder or knew Phillips would probably commit a first degree murder.
    The jurys verdict signified it was satisfied the Crown had proven such a state
    of mind of O'Hara-Salmon beyond a reasonable doubt.  Accordingly, leaving
    s. 21(2) with the jury as a possible route to culpability did not prejudice
    O'Hara-Salmon in the circumstances of this case.

III.

FAILURE TO GIVE A
W.(D.)
INSTRUCTION CONCERNING O'HARA-SALMON

A.  The issue stated

[249]

OHara-Salmon
    called a number of witnesses at trial, most of whom were present at Jacks Bar
    or in the parking lot on the night of the shooting. OHara-Salmon did not
    testify. Phillips testified in his defence; he did not call any other witness.

[250]

OHara-Salmon
    takes no issue with the trial judges general instructions on the presumption
    of innocence and burden of proof. However, he submits the trial judge erred in
    refusing to include in the charge a
W.(D.)
instruction regarding
    exculpatory evidence in his favour.

[251]

At trial,
    OHara-Salmons counsel had requested such an instruction. After pointing out
    OHara-Salmon had called evidence and Mr. Phillips had testified, counsel
    submitted that:

[E]ven if someone like is in Mr. OHaras situation, he doesnt
    testify but evidence merges from the Crowns case as well as evidence that is
    called on his defence, that hes entitled to as well the
W.D.
instruction
    about if this  and whats important here, of course, is on all these issues,
    whether or not even if the jury doesnt accept all of his evidence, or evidence
    called on his behalf, or that emerged from the Crowns case, its still
    important to say, does this raise a reasonable doubt. Its evidence that
    favours Mr. OHara-Salmons position. So, I would again just as the evidence
    goes to accused A and accused B, uniquely and solely the evidence its
    applicable to them, as you say respectively.  I think a
W.D.
inquiry
    or whatever terminology you chose to use that applies to Mr. OHara-Salmon is
    important in all the circumstances.

[252]

In making that
    submission, counsel did not identify for the trial judge any specific
    exculpatory evidence that would attract a
W.(D.)
type instruction.

[253]

The trial judge
    declined to include such an instruction stating: Ive indicated that already
    in the charge and already how the evidence of Mr. Phillips applies to
    OHara-Salmon as well. Im not going to add another
W.D.
There are
    three
W.D.
cautions in my charge.

[254]

On appeal,
    OHara-Salmon submits that in the absence of a
W.(D.)
instruction in
    relation to him, the jury would not understand that since they had to approach
    Phillips evidence using a
W.(D.)
type of analysis, they had to take
    the same approach when assessing Phillips evidence on the count against OHara-Salmon.
    He argues that even though Phillips evidence on self-defence did not raise a
    reasonable doubt with the jury, it could have raised one on the issue of OHara-Salmons
    participation in an offence.  All of Phillips evidence would have supported
    OHara-Salmons position that he was not guilty.

[255]

The respondent
    submits the trial judges instructions to the jury regarding reasonable doubt
    were comprehensive and correct. In his charge and decision tree, the trial
    judge reminded the jury the result they reached on the central issue of
    self-defence by Phillips was also applicable to OHara-Salmon. The charge on
    self-defence contained numerous references to the Crowns burden to prove
    beyond a reasonable doubt the absence of one of the defences elements. The
    respondent submits the jury would not have misunderstood the concept of the
    burden on the Crown to disprove self-defence and prove the elements of first
    degree murder beyond a reasonable doubt.

B.      Analysis

[256]

Where credibility is a central issue in a jury trial, the judge must
    explain the relationship between the assessment of credibility and the Crowns
    ultimate burden to prove the guilt of the accused to the criminal standard:
R.
    v. S. (J.H.
), 2008 SCC 30, [2008] 2 S.C.R. 152, at para.
    8. A trial judge need not use some magic incantation to explain that
    relationship. Instead,
W.(D.)
s  message
    is that it must be made crystal clear to the jury that the burden
never
shifts from the Crown to prove
every
element of the offence beyond a reasonable doubt:
S.
    (J.H.
), at para. 13.

[257]

In
R .v D. (B.)
, 2011 ONCA 51, 266
    C.C.C. (3d) 197, this court explained, at para. 114, that the principles
    underlying
W.(D.)
are not confined
    to cases where an accused testifies and his or her evidence conflicts with that
    of Crown witnesses. Instead:

Where, on a vital issue, there are credibility
    findings to be made between conflicting evidence called by the defence or
    arising out of evidence favourable to the defence in the Crowns case, the
    trial judge must relate the concept of reasonable doubt to those credibility
    findings.  The trial judge must do so in a way that makes it clear to the
    jurors that it is not necessary for them to believe the defence evidence on
    that vital issue; rather, it is sufficient if  viewed in the context of all of
    the evidence  the conflicting evidence leaves them in a state of reasonable
    doubt as to the accuseds guilt:
Challice
. 
    In that event, they must acquit.

[258]

In the cases relied upon by OHara-Salmon where potentially
    exculpatory evidence attracted the need for a
W.(D.)
instruction, the exculpatory evidence concerned the central issue of
    the identity of the perpetrator: for example, exculpatory portions of the
    accuseds statement to the police that he did not swing the hammer that struck
    the deceased:
R. v. Bucik
, 2011 ONCA 546, 274
    C.C.C. (3d) 421, at para. 32; evidence of the accuseds son in an incest case
    as to whether the co-accused was his brother or step-father:
D. (B.)
, at para. 97; and exculpatory evidence from several witnesses that
    the accused, who was white, was not the robber, whom they recalled was black:
R.
    v. T.L.
, 2008 ONCA 763, at para. 6.

[259]

In the present case, the identity of the shooter was not in dispute.
    Nor was OHara-Salmons presence in the parking lot at the time of the
    shooting. The theory OHara-Salmon put to the jury was that: the evidence
    showed Hadbai initiated the confrontation in Jacks Bar, which spilled out into
    the parking lot; OHara-Salmon had no motive to seek vengeance against Hadbai; and
    Hadbai brought a knife to a fist fight, with tragic consequences:

Phillips thought the metal object in Said
    Hadbais hand was a gun and shot to defend himself and Drai OHara-Salmon. So,
    in the final analysis there was no vengeful plan. No planned and deliberate
    scheme. No intention to kill Said Hadbai, that had been percolating for months.
    Unfortunately, it was this knife that cost Said Hadbai his life.

[260]

On this defence theory, the vital issue involving credibility was
    Phillips assertion that he shot Hadbai in self-defence. During the charge on
    self-defence, the trial judge repeatedly stated the Crown bore the burden of
    disproving beyond a reasonable doubt an element of the defence. He gave several
W.(D.
) instructions regarding Phillips
    evidence. The trial judge reminded the jury it could consider the in-court
    testimony of Mr. Phillips to help you decide the case of both accused persons
    on trial. Finally, in his charge and decision tree the trial judge clearly
    instructed the jury that if the Crown failed to prove Phillips caused Hadbais
    death unlawfully, then the jury was required to acquit OHara-Salmon.

[261]

In those circumstances, I see no error in the trial judge refusing
    to include in the charge a
W.(D.)
instruction
    specific to OHara-Salmon. The jury would have understood the burden never shifts
    from the Crown to prove every element of the offence beyond a
    reasonable doubt. I would not give effect to this ground of appeal.

IV.

DID THE CHARGE FAIL TO RELATE THE LAW TO THE EVIDENCE?

A.

The issue
    stated

[262]

OHara-Salmon submits the trial judges charge failed to relate the
    law to the evidence on two key issues: (i) he did not assist the jury with how
    the evidence could support a finding that OHara-Salmon was a party to an
    offence under ss. 21(1)(b)/(c) or s. 21(2) of the
Criminal Code
; and (ii) he did not draw the jurys attention to the evidence that
    distinguished manslaughter from murder, or second degree murder from first
    degree murder.

[263]

The respondent submits a functional and contextual approach must be
    taken to assess the adequacy of the trial judges explanation of the evidence
    relevant to the legal issues. Applying such an approach, the trial judges
    instructions adequately laid out for the jury the legal concepts and evidence
    bearing on the issues.

B.

Analysis

[264]

A trial judge has a general obligation to identify for the jury the
    issues and the evidence relevant to the issues:
R. v. Rodgerson
, 2014 ONCA 366, 309 C.C.C. (3d) 535, at para. 71; affd 2015 SCC 38,
    [2015] 2 S.C.R. 760. How far a trial judge should go in discussing the evidence
    depends upon the specifics of each case, including the nature and character of
    the evidence in relation to the charge, the issues raised, and the conduct of
    the trial:
R. v. Azoulay
, [1952] 2 S.C.R. 495,
    at p. 503;
Rodgerson
, at para. 73.

[265]

When the trial judges charge is read as a whole, I am satisfied it
    adequately related the evidence to the legal issue of OHara-Salmons
    participation in the offence. Before dealing with the issue of OHara-Salmons
    participation as a party, the trial judge reviewed the evidence in some detail,
    proceeding in a chronological fashion. When the trial judge turned to the issue
    of OHara-Salmons participation in the offence, he clearly explained the type
    of conduct that would constitute aiding or abetting.

[266]

The evidence relevant to the issues of aiding or abetting was not
    technical. For the most part, it consisted of the evidence about the events
    inside and outside of Jacks Bar on the evening of December 26, 2011 and the
    early morning hours of the following day. The evidence of those present in the
    bar or at the parking lot, including Phillips, was not overly involved. In
    those circumstances, the relevance of the witnesses narrative evidence would
    have been direct and obvious to the jury. Further, in dealing with s. 21(2),
    the trial judge went over in some detail evidence relevant to whether there was
    an agreement between the appellants.

[267]

OHara-Salmon, relying on this courts decision in
Rodgerson
, at para. 96, also submits the trial judge failed to draw the
    jurys attention to the evidence that distinguished manslaughter from murder,
    or second degree murder from first degree murder. I do not agree.

[268]

When the trial judge dealt with Questions 3 (second degree murder)
    and 4 (first degree murder) on the decision tree, he reviewed in considerable
    detail evidence relevant to manslaughter, second degree murder, and first
    degree murder. At trial, OHara-Salmon took no objection to the adequacy of the
    review of the evidence relating to those issues.

[269]

Accordingly, I am not persuaded the trial judge failed to adequately
    relate the evidence to the issues. I would not give effect to this ground of
    appeal.

V.

UNREASONABLE VERDICT

A.

The issue stated

[270]

In a one paragraph submission in his factum, OHara-Salmon contends the
    verdict finding him guilty of first degree murder was unreasonable. He argues the
    Crowns case at its highest amounted to evidence that [he] knew that Phillips
    was going to shoot the deceased.  However, he submits there was no evidence to
    support a finding that he knew Phillips was going to shoot Hadbai with an
    intention to kill or with an intention to cause him bodily harm that Phillips
    knew was likely to cause death. OHara-Salmon contends the statements
    attributed to him  Get the thing kp is here, Him. Not him, and I dont
    fight niggas, I shoot them  together with his letter to Knowles stating he
    intended to wet [Hadbai] up and evidence of his alleged jealously of Hadbai,
    could not support a finding he wanted Hadbai to do anything more than bleed.

[271]

OHara-Salmon did not address this ground of appeal in oral
    argument.

B.

Analysis

[272]

A jury verdict
    is unreasonable if it is one that a properly instructed jury, acting
    judicially, could not reasonably have rendered:
R. v. W.H.
, 2013 SCC
    22, [2013] 2 S.C.R. 180, at para. 26.
An appellate court must
    ask itself whether the jurys verdict is supportable on
any
reasonable view of the evidence and whether proper judicial
    fact-finding applied to the evidence
precludes
the conclusion reached by the jury:
W.H.
at para. 2.
Appellate review of a jurys verdict of guilt
    must be conducted within two boundaries, as stated in
W.H.
at paras.
    27-28:

On one hand, the reviewing court must give due weight to the
    advantages of the jury as the trier of fact who was present throughout the
    trial and saw and heard the evidence as it unfolded.

On the other hand, however, the review cannot be limited to
    assessing the sufficiency of the evidence... [T]he court is required to review,
    analyse and, within the limits of appellate disadvantage, weigh the evidence
    and consider through the lens of judicial experience, whether judicial
    fact-finding
precludes
the conclusion reached by the jury. Thus, in
    deciding whether the verdict is one which a properly instructed jury acting
    judicially could reasonably have rendered, the reviewing court must ask not
    only whether there is evidence in the record to support the verdict, but also
    whether the jurys conclusion conflicts with the bulk of judicial experience.
    [Citations omitted.] [Emphasis in original.]

[273]

I
    read OHara-Salmons factum as acknowledging the availability on the evidence
    of a verdict of manslaughter. I accept the respondents submission that there
    was significant evidence placed before the jury which, if accepted, would
    enable it to conclude: OHara-Salmon had a motive, jealously, to want Hadbai
    killed; he recruited Phillips to accomplish that goal; and he gave Phillips
    directions outside of Jacks Bar identifying Hadbai. It was open to the jury to
    interpret the statements and letter referred to in para. 270 above as evidence
    supporting a finding of first degree murder against OHara-Salmon.
I am not persuaded that
weighing the evidence and
    considering it through the lens of judicial experience precludes the jurys
    finding. I would not give effect to this ground of appeal.

VI.

SUMMARY

[274]

For these
    reasons, I would dismiss OHara-Salmons appeal.

PART 4  DISPOSITION

[275]

For the reasons
    set out above, I would dismiss the appeals of Phillips and O'Hara-Salmon.

Released: DMB    Sep 28, 2017

David Brown J.A.
I agree. E.E. Gillese J.A.
I agree. K. van Rensburg J.A.





[1]

Sub-section 232(2) subsequently was amended by S.C. 2015, c.
    29, s. 7.


