



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Rogers, 2015 ONCA 399

DATE: 20150608

DOCKET: C51859

Strathy C.J.O., Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Corey Rogers

Appellant

Delmar Doucette, for the appellant

Michael Bernstein, for the respondent

Heard: December 1, 2 and 3, 2014

On appeal from the conviction entered on April 3, 2009 by
    Justice James Ramsay of the Superior Court of Justice, sitting with a jury.

Strathy C.J.O.:

[1]

A night at the Dizzy Weasel pub in Hamilton ended with two men dead from
    knife wounds, two others in hospital and the appellant charged with first
    degree murder, second degree murder, attempted murder and aggravated assault.

[2]

The appellant admitted stabbing the two deceased men, but claimed he
    acted in self-defence. He also conceded one of the other two surviving victims might
    have been stabbed while he was defending himself.

[3]

A jury convicted him of all counts.

[4]

He appeals, asserting: the conviction for first degree murder was
    unreasonable; the jury was not properly instructed on the principles in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742, after-the-fact conduct and self-defence; a
    Crown witness was biased; and he should have received the benefit of
    legislative changes to the law of self-defence.

[5]

For the reasons that follow, I would dismiss the appeal.

A.

overview

[6]

The following overview sets the stage for my discussion of the grounds
    of appeal. Additional detail is added when I discuss each ground.

[7]

The appellant, his girlfriend Joana Desousa and his friend Tim Leeming
    arrived at the Dizzy Weasel shortly after 11:30 p.m. on February 16, 2007. The
    four victims from the events later that evening  Paul Haggerty, Kenny Clark, Lucas
    Deane and Lee-Anthony Newell  were already there.

[8]

The atmosphere between the two groups turned ugly about 20 minutes later
    when Clark used Leemings jacket to wipe up a spilled beer. The appellant confronted
    Clark and allegedly sucker-punched him in the lip. Haggerty came to Clarks
    defence and the dispute moved to the parking lot.

[9]

The appellant and Clark squared off. Leeming was present, as were
    Clarks friends Haggerty, Deane and Newell. Clark punched the appellant in the
    mouth. The appellant fled and may have been pursued briefly by Clark and some
    of his friends.

[10]

The
    appellant returned to the bar about 17 minutes later. At trial, he claimed he went
    back to collect his girlfriend and get his jacket, which he had left at the
    bar. He headed to the parking lot, where he encountered Haggerty and Clark.

[11]

There
    was a second confrontation in the parking lot involving the appellant and
    Leeming on one side and Haggerty and Clark on the other. The appellant stabbed
    Haggerty twice in the back  once in the shoulder near the neck and the other
    through the rib cage, cutting into the kidney and slicing the colon. The
    shoulder wound severed an artery and Haggerty bled to death before paramedics
    arrived. Clark was also stabbed, but was saved by emergency surgery. The
    appellant fled.

[12]

Meanwhile,
    Deane and Newell were at a nearby restaurant, where they had gone after the
    initial parking lot altercation. They were just starting their meal when
    someone, probably the appellant, ran by shouting that their friends had been
    stabbed.

[13]

Deane
    and Newell gave chase. There was evidence that suggested Deane may have grabbed
    a knife from the restaurant. They caught up with the appellant and Leeming on Gage
    Avenue. There was another confrontation. Deane struck the appellant. The
    appellant stabbed Deane repeatedly, a total of six times, including several
    times in the back. Newell claimed the appellant cut his arm when he tried to intervene.
     The appellants face was cut at some point.

[14]

The
    appellant and Leeming ran away. The appellant claimed he threw his knife into a
    dumpster. Newell tried to carry Deane to a nearby store to call for help. Paramedics
    arrived, but were unable to save Deane. Police located a steak knife blade on
    the ground on Gage Avenue, along the route taken by Newell and Deane after the
    stabbing. Deanes DNA was on the blade.

[15]

A
    forensic pathologist called by the Crown testified that Haggertys wounds were
    consistent with being inflicted by the blade. That same witness admitted
    telling Crown counsel that she hoped the appellant would be convicted.

[16]

The
    appellant was arrested the next day. He was charged with the murders of
    Haggerty and Deane, the attempted murder of Clark, and aggravated assault of
    Newell. The Crown alleged first degree murder of Haggerty, based on planning
    and deliberation between leaving the bar after the first fight and returning
    and engaging in the second fight.

[17]

The
    defence argued the blade found on Gage Avenue belonged to one of the victims,
    supporting the self-defence theory. The trial judge left self-defence (on all
    counts), the identity of the assailant (on the Clark and Newell counts), intent
    (on all counts) and provocation (on the murder counts) open to the jury. The jury
    deliberated for three days, ultimately convicting the appellant of all
    charges.

B.

issues

[18]

The
    appellant raises the following issues:

(a)

Unreasonable verdict of first degree murder
: the conviction of
    first degree murder was unreasonable because there was no evidence of planning
    and deliberation;

(b)

After-the-fact conduct
: the trial judge erred in instructing
    the jury they could consider after-the-fact conduct evidence to determine the
    appellants degree of culpability;

(c)

Expert bias
: a Crown expert was biased and a new trial should
    be ordered to admit fresh expert evidence on whether the blade recovered by
    police was the one used by the appellant;

(d)

W.(D.)
: the trial judge erred in failing to instruct the jury
    to apply the principles from
W.(D.)
when considering self-defence,
    provocation, and planning and deliberation; and

(e)

Self-defence
: the trial judge erred in refusing to leave s.
    34(1) self-defence with the jury; and the appellant should be entitled to the
    benefit of the new self-defence provision of the
Criminal Code
, R.S.C.
    1985, c. C-46 that came into force after his trial.

C.

discussion

(a)

Unreasonable verdict
    of first degree murder

[19]

The
    appellant says his conviction for first degree murder of Haggerty was
    unreasonable. Relying on the decision of this court in
R. v. Phung
,
    2012 ONCA 720, at para. 43, he says the theory of planning and deliberation was
    speculative and unsupported by the evidence. Crown counsel invited the jury to
    find that he acquired the knife between the first and second parking lot
    incidents, but the Crown could not prove where or how he got it. This theory
    reversed the burden of proof by requiring
him
to prove he had the
    knife when he first came to the bar that evening.

[20]

To
    establish an unreasonable verdict under s. 686(1)(a)(i) of the
Code
,
    the appellant must persuade us that no properly instructed jury, acting
    judicially, could reasonably have found him guilty of first degree murder:
R.
    v. Jackson
, 2007 SCC 52, [2007] 3 S.C.R. 514, at para. 2;
R. v. R.P.
,
    2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9.

[21]

The
    Crown theory was that the appellant was angry when he left the Dizzy Weasel
    after the first fight. He was angry because he got punched in the face and lost
    the fight  a fight in which Haggerty, Newell and Deane stood around cheering for
    Clark. He was angry because of the incident with Leemings jacket. And he was
    angry because he had seen Newell exchange a passionate kiss with his girlfriend
    Desousa a week earlier.

[22]

The
    Crown contended that in the 17 minutes between leaving the parking lot and
    returning, the appellant formulated a plan to stab and kill the four men.  After
    unsuccessfully attempting to call and recruit two friends to assist him, he armed
    himself with a knife and returned to the pub where he stabbed Haggerty and
    Clark.

[23]

The
    Crown acknowledged it could not prove where he got the knife, but said it was
    reasonable to infer he got one during this period. No one saw a knife while he
    was at the bar earlier in the evening. Leeming, who was with him at his home
    before he went to the bar, did not see him get the knife.

[24]

The
    appellant testified he had the knife when he arrived at the bar at 11:30 p.m. His
    story, which was challenged in cross-examination, was not free from
    difficulties. He claimed he brought the knife for protection, but had not
    brought it to the Dizzy Weasel on his previous four or five visits. In spite of
    wanting it for protection, he said he left it sitting in his jacket on the seat
    in the bar when he went outside to fight with Clark after the beer spilling
    incident. He claimed it was a large knife, at least 12 inches long, but a knife
    that size would have been visible sticking out of his jacket pocket. He claimed
    he returned to the bar after running away the first time in order to retrieve
    his jacket, but Desousa said he was wearing his jacket when he ran away.

[25]

The
    confrontation over the spilled beer, the appellant sucker punching Clark, the first
    fight in the parking lot, the anger over the kiss, the flight from the parking
    lot and the return to the bar could all support a finding of animus. The 17
    minutes between leaving and returning and the phone calls to friends to recruit
    their assistance would support a conclusion of planning and deliberation.

[26]

There
    was therefore ample evidence to demonstrate both animus and planning and
    deliberation. There was also circumstantial evidence from which the jury could
    have found the appellant obtained the knife before he returned to the bar. The
    Crown was not required to show when or how he obtained it.

[27]

I
    would therefore reject this ground of appeal.

(b)

After-the fact conduct

[28]

The
    appellant submits the trial judges instructions on the Haggerty, Deane and
    Clark counts were flawed because he told the jury they could consider whether his
    after-the-fact conduct was consistent with the actions of a person who has
    committed
the offence charged
 (emphasis added). This was an error, he
    says, because the conduct was equally consistent with lesser levels of
    culpability.

[29]

He
    submits this general instruction invited the jury to use his conduct to determine
    his degree of culpability on those counts, when it was only relevant to whether
    he had acted in self-defence:
R. v. White
, [1998] 2 S.C.R. 72, at
    para.
32;
R. v. Fraser
(2001), 56 O.R. (3d) 161
    (C.A.), at paras.
17-18, leave to appeal to S.C.C. refused, [2002]
    S.C.C.A. No. 11. It was not probative of his degree of culpability:
R. v.
    White
, 2011 SCC 13, [2011] 1 S.C.R. 433;
R. v. McIntyre
, 2012
    ONCA 356, 291 O.A.C. 359, at paras. 41-46;
R. v. Palmer
, 2010 ONCA 804,
    at paras. 12-13, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 361.

[30]

There
    were three particular acts referred to by the trial judge in his instructions:

(a)

Leeming
    testified the appellant threatened him with death if he snitched. The
    appellant denied this.

(b)

The
    appellant admitted he phoned Desousa, and told her not to name names.

(c)

The appellant
    admitted having thrown his knife into a dumpster after stabbing Haggerty and
    Deane.

[31]

The
    trial judge told the jury that if they found these events happened, they could
    use them as pieces of circumstantial evidence if they considered them more
    consistent with the acts of a person who has committed the offence charged.

[32]

He
    added, however, that before they used any of this evidence, they must consider
    whether there is any explanation for the act that is also consistent with
    innocence.

[33]

Immediately
    after that, he instructed them, as a matter of law, that this evidence only
    went to whether the appellant acted with justification  i.e. in self-defence.
    He then said, [y]ou cannot use it in deciding the question of intent, provocation,
    and whether he stabbed a particular person or in what manner. He pointed out
    that the conduct might relate to one stabbing incident and not to the other.

[34]

The
    appellant says these instructions were undermined by the trial judges subsequent
    specific instructions. For example, a few minutes later, in instructing the
    jury on the requisite state of mind on the Haggerty murder count, he gave the
    following instruction:

To determine Mr. Rogers 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 Corey Rogers words and conduct, before, at the time and
after the
    stabbing
. All these things, and the circumstances in which they happened
    may shed light on Corey Rogers state of mind at the time. They may help you
    decide what he meant or didnt mean to do. In considering all the evidence, use
    your common sense.  [Emphasis added.]

[35]

This,
    the appellant says, had the effect of telling the jury they
could
consider after-the-fact conduct to determine his degree of culpability.

[36]

However,
    this instruction was followed by a review of the evidence that had a bearing on
    the appellants state of mind. There was no mention of any after-the-fact
    conduct.

[37]

Similar
    instructions were given on the Deane and Clark counts. Again, these
    instructions were followed by a review of some of the evidence bearing on state
    of mind. Again, there was no reference to after-the-fact conduct.

[38]

In
    my view, reading the impugned instructions in the context of the charge as a
    whole, there was no reasonable possibility the jury would have misunderstood
    the permissible use of after-fact-conduct. The judges instruction was simple
    and clear  the jury could
only
use the evidence to determine whether
    he had acted in self-defence. The instructions on state of mind made no
    reference to the use of after-the-fact conduct to determine the appellants
    level of culpability.

[39]

In
R. v. Tuck
, 2014 ONCA 918, at paras. 44-46, this court concluded there
    was no reversible error when the trial judge instructed the jury in a similar
    fashion.

[40]

At
    its highest, this is a case like
R. v. Arroyo
, [2005] O.J. No. 1092
    (C.A.), where this court said, at paras. 16-18, that while it might have been
    preferable for the trial judge to have omitted the words after the stabbing
    from his specific instruction, its inclusion resulted in no substantial wrong
    or miscarriage of justice.

[41]

In
    assessing the risk the jury might have misunderstood the instruction, it is
    significant that the appellants trial counsel, Mr. Rosen, who listened to the
    charge as it was being given, made no objection and stated for the record he did
    not perceive any error of law in the instructions.

[42]

I
    would therefore dismiss this ground of appeal.

(c)

Expert bias

[43]

The
    appellant filed a supplementary factum asserting the Crowns forensic
    pathologist, Dr. Chitra Rao, was biased. He claims: (a) Dr. Rao displayed bias
    when she acknowledged the wounds suffered by the two deceased victims were
    consistent with having been caused by the blade found on Gage Avenue; (b) she
    exhibited bias by testifying that the blade could have broken off in Deanes shoulder
    wound and could have been carried a distance before falling out; (c) Crown
    counsels closing address made inappropriate reference to this biased evidence;
    (d) the Crown relied on impermissible oath-helping in relation to Dr. Raos
    evidence; and (e) the trial judge failed to properly charge the jury on the
    effect of Dr. Raos bias on their assessment of her evidence.

[44]

The
    appellant brought an application to admit fresh evidence in support of this
    ground of appeal  the evidence of a British forensic pathologist, Dr. Christopher
    P. Johnson, who reviewed Dr. Raos evidence at the request of Ontarios Chief
    Forensic Pathologist, in response to a request by appellants counsel.

[45]

One
    issue for the jurys consideration was whether the blade recovered by police on
    Gage Avenue came from the appellants knife (as the Crown contended) or whether
    it came from a knife carried by either Deane or Newell (as the defence claimed).
    If the jury accepted the appellants evidence that he had thrown his knife in a
    dumpster while running away after the last stabbing, the blade found on the
    street supported his claim of self-defence. If, on the other hand, the jury was
    satisfied the blade came from the appellants knife, it undermined his claim of
    self-defence and his credibility.

[46]

The
    issue of bias came up in the following context.

[47]

During
    a break in Dr. Raos examination-in-chief, she told Crown counsel she hoped the
    appellant would be convicted. Crown counsel immediately disclosed this
    statement to defence counsel. At the commencement of Dr. Raos
    cross-examination, defence counsel brought the statement to Dr. Raos
    attention. She reluctantly admitted it and apologized. She agreed with defence
    counsels suggestion that it may be something for the jury to consider when
    they consider the weight of your evidence.

[48]

Dr.
    Rao accepted many of the suggestions put to her by defence counsel in
    cross-examination, including:

·

a bruise on Haggertys chest discovered on the autopsy could have
    been caused by the victim being hit on the chest by the blunt handle of a
    substantial knife; and

·

the stab wound on Haggertys left shoulder could have been made
    by someone facing him and could have been the first knife blow administered.

[49]

These
    admissions were supportive of self-defence and lack of intent. They were emphasized
    in defence counsels closing. He submitted to the jury, based on Dr. Raos
    evidence, that the appellants response to Haggertys attack was to punch the
    guy in the chest to get him to back off and when that did not succeed, he
    stabbed him in the front right shoulder, not appreciating it might cause
    grievous bodily harm by slicing a branch of the aorta.

[50]

In
    his closing, defence counsel made a brief reference to Dr. Raos bias. The
    trial judge made no reference to it, nor was he asked to do so.

[51]

With
    this additional background, I turn to the appellants complaints in relation to
    Dr. Rao.

Use of the expression consistent with

[52]

The
    appellant submits Dr. Rao displayed bias when she agreed the stab wound
    suffered by Deane was consistent with being caused by the serrated or
    scalloped steak knife blade found on Gage Avenue. She responded to the
    Crowns questions as follows:

Q. All right. And from your examination of the wounds on Lucas
    Deane and your findings with respect to some scalloping within the wounds that
    you discovered, is this knife blade  could this knife blade have caused the
    stab wounds to Mr. Deane?

A. Could have, yes, or similar to this knife.

Q. All right. In terms of the scalloping pattern of the
    single-edged knife that we see here, is it  can you comment on whether the
    stab wounds, the very stab wounds that you gave evidence about upon Mr. Deane,
    whether this knife is
consistent with
having caused those injuries? [Emphasis
    added.]

A. Yes.

[53]

When
    asked whether the wounds to Haggerty were consistent with the use of the
    steak knife, she responded [y]es or a knife of a similar nature. Dr. Rao later
    added it was possible the same knife, or another weapon of similar
    characteristics, could have been used to cause the wounds to both Deane and
    Haggerty.

[54]

The
    appellant says the use of the phrase consistent with was improper and
    misleading, and Dr. Rao, an experienced pathologist, should not have adopted
    the phrase when the question was put to her by Crown counsel. He notes that
    recent public inquiries have emphasized the misleading nature of the expression
    consistent with. It simply means not inconsistent with, but its use is
    fraught with danger because the jury may attribute a more compelling logic to
    it: see
Report of the Kaufman Commission on Proceedings Involving Guy Paul
    Morin
(Toronto: Ontario Ministry of the Attorney General, 2008), vol. 1,
    c. 2, pp. 338-344; and
Report of the Inquiry into Pediatric Forensic
    Pathology in Ontario
(Toronto: Queens Printer for Ontario, 2008), vol. 3,
    c. 16, at pp. 433-435 [The Goudge Report]. In addition, the appellant relies on
R. v. Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330, at paras. 63-64, leave
    to appeal to S.C.C. refused, [2010] S.C.C.A. No. 125, where this court
    emphasized that a trial judge must control both the scope and the language of
    expert opinion evidence.

[55]

I
    would not give effect to this submission. The trial judge and defence counsel
    never took issue with Crown counsels use of the expression consistent with.
    In these circumstances, I am not persuaded Dr. Rao was obliged to tell Crown
    counsel the terminology was improper. In my view, her failure to do so was not
    evidence of bias, particularly when considered in context of her answers that
    the wounds
could have
been caused by that knife or
by a knife of a
    similar nature
. The trial judge reinforced the meaning of this evidence by
    instructing the jury that Dr. Rao, cannot and did not tell us whether [the
    recovered knife] caused the wounds, only that it
could have
(emphasis
    added). Taken in context, there is no reasonable possibility the jury could
    have been misled by the use of the term.

Re-examination on how the blade broke

[56]

The appellant asserts a more serious error arising from Dr.
    Raos bias regarding her acceptance of the Crowns suggestion that the blade
    could have broken off during the through and through flesh wound to Deanes
    shoulder. This supported the Crowns position that the blade belonged to the
    appellant and detracted from the appellants position that Newell also had a
    knife. It also detracted from the appellants credibility.

[57]

In re-examination, Dr. Rao was asked whether it was possible
    that the knife blade could have broken in the wound and subsequently fallen
    out. She described it as a possibility. The exact exchange was as follows:

Q. And is it possible that a superficial wound like on the
    through and through shoulder blade which we saw some, which you gave some
    evidence about movement, that the size of that wound could have  or drop a
    blade from given the superficial nature of that wound  if a knife blade broke
    in that wound as opposed to being plunged and broken off into the body cavity,
    would your opinion change with respect to that type of a superficial wound and
    whether or not the knife blade could fall out?

A. Yes, thats a possibility, yes.

[58]

The
    appellant says the premise of the question was flawed because the blade could
    not have broken off in a flesh wound. Dr. Raos failure to challenge this
    premise reflected her bias.

[59]

The
    appellant relies upon the proposed fresh evidence of Dr. Johnson, who deposed
    that it is uncommon for a knife blade to break from a handle in a stabbing and
    it would most commonly occur when the knife is of poor quality and hits bone. He
    added, however:

There are clearly a number of possibilities for how a knife
    blade could become separated from a handle during a stabbing incident such as
    this. The blade could become loosened by the action of the knife, passing one
    or more times through clothing (particularly if this was thick) and tissues,
    causing the blade to break from the handle whilst it is fully within a wound or
    else partly, or almost completely, out of a stab track. The knife could
    obviously also become separated from the handle whilst being held out of the
    body by the assailant.

[60]

He
    said that in the absence of bony injury in the wounds, it was not possible from
    any of the pathological findings to identify a wound where the blade was more
    likely to become loosened or detached. He agreed with Dr. Rao that the blade
could
have fallen out if it became detached in the shoulder wound.

[61]

In
    my view, Dr. Johnsons evidence does not establish that Dr. Raos evidence on
    this point was in any way flawed, let alone that it was tainted by bias.

Crown Closing

[62]

The
    appellant says the Crown improperly relied on Dr. Raos evidence in cross-examining
    the appellant and in closing, when the Crown submitted that the knife blade
    broke off when the appellant stabbed Deane in the shoulder. I disagree. The
    appellant admitted stabbing Deane. Deanes DNA was found on the blade. The
    blade was found near the location of Deanes stabbing. Dr. Rao provided an
    explanation of how the blade of a steak knife could have broken in the course
    of administering the final wound and how it could have fallen out of that
    wound. Dr. Johnsons evidence is not inconsistent with that possibility. I
    would therefore reject this submission.

Oath-helping

[63]

Early
    in her evidence, Dr. Rao confirmed her pathology reports had been peer
    reviewed by the Chief Coroner. Crown counsel referred to this in her closing.
    The appellant says this was impermissible oath-helping, referring to the
    general principles expressed in
R. v
.
Llorenz
(2000), 145
    C.C.C. (3d) 535 (Ont. C.A.), at paras. 27-29.

[64]

There
    was no objection made by the defence to either reference. The presence or
    absence of peer review is frequently considered in assessing the reliability of
    expert evidence: see
Abbey
and
R. v. Trochym
, 2007 SCC 6, [2007]
    1 S.C.R. 239, at paras. 39-40. In my view, taken in context, the statement was
    innocuous.

The Jury Charge

[65]

For
    these reasons, in the absence of any request by the defence at trial, in my
    view the trial judge had no obligation to comment in his charge on Dr. Raos
    bias. Given the appellants reliance on Dr. Raos evidence at trial, it may not
    have been in his interest to request an instruction on this issue.

Fresh Evidence

[66]

On
    the fresh evidence application, the appellant filed two reports of Dr. Johnson
    as well as a transcript of his cross-examination. He made no substantive
    submissions as to whether the admission of fresh evidence is in the interests
    of justice pursuant to s. 683(1) of the
Code
and whether it meets the
    test for admissibility on appeal set out in
R. v. Palmer
, [1980] 1
    S.C.R. 759, at p. 775:

(a) The evidence should generally not be admitted if, by due
    diligence, it could have been adduced at trial [although this principle will
    not be applied as strictly in criminal cases].

(b) The evidence must be relevant in the sense that it bears
    upon a decisive or potentially decisive issue in the trial.

(c) The evidence must be credible in the sense that it is
    reasonably capable of belief, and

(d) It must be such that if believed it could reasonably, when
    taken with the other evidence adduced at trial, be expected to have affected
    the result.

[67]

In
    my view, the application flounders on the last factor, the cogency test. There
    is no reasonable likelihood that the proposed fresh evidence would meet the
    cogency test or would have affected the outcome of the trial. Dr. Johnson
    agreed with the majority of the opinions expressed by Dr. Rao. In his covering
    letter, he said, I can see no major issues at all with the pathology or the
    evidence given by Dr. Rao. There are a few points on which I would offer
    somewhat differing opinion which is not unexpected in any expert review of this
    type of material.

[68]

I
    would therefore dismiss this ground of appeal.

(d)

W.(D.)


[69]

The
    trial judge gave a standard
W.(D.)
instruction early in his charge,
    linking it to the presumption of innocence and the burden of proof.

[70]

The
    appellant says the instruction should have been tailored to the issues in this
    case. The appellant did not deny he killed Haggerty and Deane. However, whether
    he acted in self-defence on all the counts and whether there was provocation on
    the Haggerty and Deane counts were live issues. The judge failed to link the
W.(D.)
principles to the Crowns burden of disproving the conditions of those
    defences. Instead of telling the jury they were required to consider whether
    the appellants evidence raised a reasonable doubt on these defences, it was
    turned into a credibility contest.

[71]

In
R. v. Parrington
(1993), 20 C.C.C. (3d) 184 (Ont. C.A.), Cory J.A.
    noted the need to relate the principle of reasonable doubt to the evidence
    adduced  in that case, alibi evidence. He proposed the instruction later set
    out in
W.(D.)
as being applicable to any case where credibility is
    important.

[72]

The
    appellant relies on
R. v. Reid
(2003), 65 O.R. (3d) 723 (C.A.) in
    support of his submission that the instructions on self-defence and provocation
    should have incorporated a
W.(D.)
instruction. In
Reid
, where
    self-defence was advanced, the trial judge had instructed the jury that they
    may acquit the accused if they accepted the accuseds evidence, or if it
    raised a reasonable doubt. Moldaver J.A., speaking for this court, held that it
    would have been preferable to instruct the jury on the circumstances in which
    they
must
acquit, if they believed or had a reasonable doubt that the
    accused had acted in self-defence. He continued, at para. 72:

[S]uch an approach would avoid the possibility of the jury
    being misled into thinking that they retained an overriding discretion to
    convict even though they otherwise believed or had a reasonable doubt that the
    appellant was acting in lawful self-defence at the time of the killing. To
    guard against that possibility, I would suggest that in future cases, when the
    defence of self-defence is raised and the trial judge believes that a
W.(D.)
instruction is warranted, the jury should be instructed along these lines with
    respect to the first two principles:

1.  If you accept the accused's evidence and on the basis
    of it, you believe or have a reasonable doubt that he/she was acting in lawful
    self-defence as I have defined that term to you, you will find the accused not
    guilty.

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

[73]

In
    that case, however, Moldaver J.A. found the jury would
not
have been
    misled when the instructions were considered in context (at para. 73):

As indicated, the
W.(D.)
instruction given by the trial
    judge was potentially confusing. However, when it is considered in the context
    of the charge as a whole, I am satisfied that the jury would not have been
    misled into thinking that they could convict even though they otherwise
    believed or had a reasonable doubt that the appellant was acting in lawful
    self-defence at the time of the killing. Accordingly, I would not give effect
    to this ground of appeal.

[74]

The
W.(D.)
instruction is intended to ensure the jury understands the
    application of the principle of reasonable doubt to issues in which credibility
    is a factor. It makes it clear that it is not a matter of choosing between the
    evidence of the Crown on the one hand and of the accused on the other. There is
    the third alternative referred to in
W.(D.)
, namely, even if they do
    not believe the accuseds evidence, and are not left in reasonable doubt by it,
    they must consider whether, on the basis of the evidence which they do accept,
    they are convinced beyond a reasonable doubt of the accuseds guilt.

[75]

In
W.(D.)
itself, however, Cory J.A. noted, at p. 758, the failure to
    use such language is not fatal if the charge, when read as a whole, makes it
    clear that the jury could not have been under any misapprehension as to the
    correct burden and standard of proof to apply. Moldaver J.A. came to the same
    result in
Reid.

[76]

I
    agree with the respondent that the instruction in
Reid
is not
    mandatory. The failure to give it is not, on its own, reversible error. It must
    be considered in the context of the charge as a whole, including the positions
    taken by the Crown and defence. In
R. v. Bengy
, (C57571), released
    with this decision, we come to a similar conclusion.

[77]

This
    is a case, like
Reid
itself, where the trial judge brought home to the
    jury that they were bound to acquit if they believed or had a reasonable doubt
    the appellant was acting in self-defence. He told them the Crown had the burden
    of disproving self-defence and the appellant was entitled to the benefit of
    that defence if they could not say, beyond a reasonable doubt, that one of the
    conditions for self-defence did not exist. He later told them, [o]n this
    issue, the burden is on the Crown to disprove at least one of the required
    conditions beyond a reasonable doubt. If the Crown has not met its burden, you
    must acquit the accused.

[78]

He
    instructed them in the same manner with respect to provocation.

[79]

The
    failure of defence counsel to object, or to raise the issue, is telling in the
    context of a discretionary instruction. Here, experienced defence counsel made
    no such complaint.

[80]

I
    would not give effect to this ground.

(e)

Self-defence

Refusal to leave the old s. 34(1) with the jury

[81]

The
    appellant submits the trial judge erred in only instructing the jury on
    self-defence under s. 34(2) and not under s. 34(1). The latter provided:

Every one who is unlawfully assaulted without having provoked
    the assault is justified in repelling force by force if the force he uses is
    not intended to cause death or grievous bodily harm and is no more than is
    necessary to enable him to defend himself.

[82]

At
    trial, the appellant conceded instructions on ss. 35 and 37 of the
Code
were
    unnecessary
,
but argued both s. 34(1) and (2) ought to be left with
    the jury. The Crown, relying on
R. v. Pintar
(1996), 30 O.R. (3d) 483
    (C.A.), argued he should leave only s. 34(2).

[83]

After
    hearing from the Crown, the trial judge pressed defence counsel, as
Pintar
suggests
    he should, to identify a scenario in which the appellant could have a defence
    under the narrower s. 34(1) that he would not have under s. 34(2).

[84]

Defence
    counsel referred to an annotation in the
Code
(citing
Pintar
),
    which indicated on this issue:

[W]here a particular provision affords the accused a wider
    scope of justification than a companion provision, the narrow provision should
    only be put to the jury if the evidence lends an air of reality to the factual
    underpinning of that provision and the provision somehow fills a gap
    unaccounted for in the justification afforded on the wider provision.

[85]

He
    conceded that s. 34(2) was the wider provision. The discussion then turned to
    whether there was an air of reality to self-defence under s. 34(2), which
    required that the force used is not intended to cause death or grievous bodily
    harm and is no more than is necessary to enable him to defend himself. The
    following discussion ensued:

THE COURT:  But grievous bodily harm, well, thats just really
    serious bodily harm, right?

MR. ROSEN: Yeah, thats really serious bodily harm. And then,
    of course, then the fourth [requirement] is no more than necessary to defend
    himself. So you may be very well be right, that on the grievous bodily harm
    side, that if hes using a knife to stab somebody repeatedly, that

THE COURT: He must intend at least that much.

MR. ROSEN: At least that much. In which case there would be no
    air of reality. I dont want to concede that point for purposes of the record,
    but you may very well be right.

[86]

In
    the end, the trial judge charged the jury only on s. 34(1).

[87]

In
Pintar
, this court expressed a concern about over-charging a jury on
    unnecessary, inappropriate and confusing provisions and emphasized the need for
    a functional approach to the instruction on self-defence. Moldaver J.A. stated,
    at p. 494:

It [
R. v. Hebert
, [1996] 2 S.C.R. 272] invites trial
    judges to take a hard look at the evidence with a view to determining the
    essence of the claim to self-defence and the Code provision(s) realistically
    available to that claim. It advocates a careful and considered culling of the self-defence
    provisions to avoid unnecessary, inappropriate and irrelevant legal instruction
    of a kind that might well divert the jury's attention from the real basis upon
    which the claim to self-defence rests.

[88]

He
    continued, at p. 496:

To give effect to the functional approach, I would urge trial
    judges to consider the following guidelines when faced with the prospect of
    charging a jury on the law of self-defence:

(1) Consider the evidence carefully with a view to determining
    the essence of the claim to self-defence and the Code provision(s)
    realistically available to that claim.

(2)  To the extent that the evidence fails the air of
    reality test in respect of one or more of the constituent elements of a
    particular provision, that provision should not be left with the jury.

(3)  To the extent that the evidence clearly establishes
    one or more of the constituent elements of a particular provision, Crown
    counsel should be encouraged to admit the underlying facts and thereby avoid
    unnecessary legal instruction.

(4)  Where a particular provision affords the accused a
    wider scope of justification than a companion provision, the narrower provision
    should only be put to the jury if the evidence lends an air of reality to the
    factual underpinnings of that provision, and the provision somehow fills a gap
    unaccounted for in the justification afforded by the wider provision.

And, at p. 497, he made the suggestion followed by the
    trial judge in this case:

For my part, I am of the view that when trial judges are faced
    with situations like this, they should call upon counsel to justify instruction
    on the narrower provision. If the results of that exercise reveal either the
    lack of an evidentiary base for putting the narrower provision, or an inability
    to demonstrate how the narrower provision might be available to fill a gap not
    provided for by the broader one, the narrower provision should be discarded.
    Once again, let me be clear that the underlying purpose of this exercise is not
    to remove self-defence from the jury's consideration. Rather it is designed to
    focus the jury's attention on the essence of the claim to self-defence and the
    available Code provision(s) most relevant to it.

[89]

The
    appellant submits there was an air of reality to s. 34(1) because whether the
    appellant intended to cause death or grievous bodily harm was a live issue on
    all counts. On the appellants version, his first act in the parking lot
    incident was a defensive punch to Haggertys chest using the blunt handle of
    the knife. When this did not deter him, the appellant stabbed him in the shoulder
     a location he could not have realized would be fatal. With respect to the incident
    on Gage Avenue, the appellant argued he was simply flailing his knife in an
    attempt to defend himself against Deane and did not deliver any targeted stabs
    intended to cause grievous harm. As a result, he says, s. 34(1) offered a
    broader defence than s. 34(2) because it did not require a finding the
    appellant was under an apprehension of death or grievous bodily harm.

[90]

I
    would reject this ground of appeal for three reasons.

[91]

First,
    there was, as the appellants trial counsel all but conceded, no air of reality
    to self-defence under s. 34(1). Using a knife to repeatedly stab someone in the
    upper body necessarily demonstrates an intention to cause at least grievous
    bodily harm, thereby taking the case outside the ambit of s. 34(1).

[92]

Second,
    although s. 34(1) was broader than s. 34(2), in that it did not require the
    accused to be acting under an apprehension of death or grievous bodily harm, the
    jury would be bound to find the appellant apprehended grievous bodily harm if
    it found the force he used was no more than what was necessary to defend
    himself. In other words, if he was not under an apprehension of death or
    grievous bodily harm, he could not have met the proportionality requirement
    under s. 34(1) of using no more force than necessary to defend himself. Thus, s.
    34(1) could not have offered him a broader defence and charging the jury on it
    would have been unnecessary and confusing.

[93]

Third,
    given the jurys findings on first degree murder of Haggerty and second degree
    murder of Deane, they clearly concluded beyond a reasonable doubt the appellant
    intended to cause death or grievous bodily harm. By necessary implication, they
    could not have accepted his defence under s. 34(1).

[94]

I
    would therefore reject this ground of appeal.

Retrospectivity

[95]

For
    the reasons given in
R. v. Bengy
(C57571),

I conclude the
Citizens
    Arrest and Self-defence Act
, S.C. 2012, c. 9 does not apply
    retrospectively. I would therefore reject the appellants contention that, on
    appeal, he should be granted a new trial based on legislative amendments that
    came into force nearly four years after he was convicted: see
R. v. Heydari
,
    2014 ONSC 2350, at paras. 20-28.

D.

disposition

[96]

For
    these reasons, I would dismiss the appeal.

G.R. Strathy C.J.O.

I agree M. Tulloch
    J.A.

I agree W. Hourigan
    J.A.

Released: June 08, 2015


