



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson, 2019 ONCA 145

DATE: 20190225

DOCKET: C61088

Watt, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Philip Johnson

Appellant

Mark C. Halfyard and Breana Vandebeek, for the appellant

John Patton, for the respondent

Heard: June 26, 2018

On appeal from the convictions entered by Justice Ian
    V.B. Nordheimer of the Superior Court of Justice, sitting with a jury, on
    October 20, 2010.

Watt J.A.:

[1]

Three gunshots were fired outside Whispers, an after-hours bar. A man
    just released from the grip of a bouncer fired those shots. The bouncer worked
    at Whispers.

[2]

The shots missed the bouncer, their apparent target. But the shots hit
    two other people. One man died. The other was wounded, but survived.

[3]

A jury was satisfied beyond a reasonable doubt that Peter Johnson was
    the shooter. The jury found him guilty of second degree murder and attempted
    murder.
[1]


[4]

Peter Johnson appeals his convictions. He says that the trial judge
    wrongly excluded some expert evidence tendered by the defence and further erred
    in refusing to leave the statutory partial defence of provocation to the jury
    in connection with the charge of second degree murder.

[5]

These reasons explain why I would reject the claim of error relating to
    the exclusion of evidence, but allow the appeal on the basis that provocation
    ought to have been left with the jury.

The Background Facts

[6]

No one who was part of the melee during which the shootings occurred
    identified the shooter as Peter Johnson, or for that matter, as anybody else.
    However, it was expressly admitted at trial that the shooter was the person
    whom the bouncer, Albert Grant, had subdued then released in the parking lot
    outside Whispers.

The Robbery

[7]

Entry to Whispers required payment of a fee or charge. The money was
    collected near the entrance of the bar and kept in the purse of a cashier.

[8]

Shortly before the shootings, two men attended the bar and grabbed the cashiers
    purse containing the entry fees. A struggle followed. The cashier pursued the
    assailants into the parking lot outside the bar. She attempted to get her purse
    back. She went after the robbers for the return of her purse because it
    contained her identification, cell phone and car keys. The robbers insisted
    that she go with them.

The Bouncer Intervenes

[9]

Albert Grant was working as a bouncer at Whispers. When he heard and saw
    the cashier struggling with some men over her purse, Grant intervened. He
    yanked the cashier away from the robbers. Her purse flew open. Money scattered
    all over. Several patrons in the parking lot began picking up the money.

[10]

When
    Grant saw the men reaching towards their clothes, he yelled, They have guns. He
    headed back towards the entrance.

The Altercation

[11]

As
    he approached the entrance to the bar, somebody ran up behind Grant, who turned
    around, put the man in a headlock and used his extendable baton to lock the mans
    hands behind his back. Grant then pulled the man down to the ground.

[12]

Grant
    assured the man that he would not harm him and would let him go without waiting
    for the police. Grant told the man to stop struggling, to cooperate and to go
    with him. The man kept saying okay, stopped struggling and began to cooperate
    as Grant had advised him to do.

The Shooting

[13]

As
    Grant released him, the man pulled out a gun and fired three shots. Grants
    face felt numb. His ears were ringing. Grant thought he had been shot.

[14]

None
    of the shots hit Grant. Two shots hit two other men in Grants vicinity. One
    died. The other survived.

The Eyewitness Testimony

[15]

Neither
    Albert Grant, nor the cashier nor anybody else present when the shooting
    occurred identified the shooter.

The Admission

[16]

Trial
    counsel expressly admitted that the man Grant apprehended and later released
    was the person who fired the three shots which killed one man and wounded
    another.

The Surveillance System

[17]

A
    surveillance system at Whispers recorded activities taking place both inside
    and outside the bar. The two cameras outside recorded events intermittently,
    not continuously. There was also a blind spot between the two cameras.

[18]

Police
    seized the surveillance system. They tracked the movements of the shooter and
    listed his identifying characteristics from the images captured by the
    surveillance system.

[19]

The
    images from the surveillance system disclosed several features of the shooters
    appearance. The shooter wore what appeared to be an aqua blue long-sleeved,
    over-sized t-shirt over a white t-shirt that hung below the outer shirt. He
    wore dark full-length pants and white running shoes with a black dot on the
    back of each shoe and black markings on the front and back of the soles of the
    shoes. He had a chain around his neck with a medallion on it.

[20]

The
    shooter had a receding hairline. His hair was braided at the back. There was a
    darkness under his lip, as if he had a moustache, and what appeared to be a
    light beard.

The Video Identification

[21]

Detective
    Hank Idsinga spent several hundred hours reviewing the video surveillance from
    inside and outside Whispers on the date of the shooting. He testified that the
    shooter had been one of the men involved in the robbery of the cashier. Earlier
    in the evening this man had been wearing a baseball cap. When Grant put this
    man in a headlock, an object resembling a hat can be seen on the ground in the
    immediate area where the confrontation between the man and Grant occurred.

[22]

It
    was the evidence of Det. Idsinga that the only person who fit all the
    identifying characteristics of the shooter was Peter Johnson.

The DNA Evidence

[23]

Police
    seized the jacket Albert Grant was wearing when he put the shooter in a
    headlock and immobilized his arm with the extendable baton. Grant had his left
    arm around the shooters neck and the shooter had his head against Grants
    upper left chest.

[24]

In
    the upper left quadrant of Grants jacket, a forensic biologist located five
    areas of staining, including two encrusted areas. Four of these five areas,
    including one that was encrusted, contained a DNA profile in which Peter
    Johnson was the major contributor. The probability of another person being the
    source of this DNA was one in 5.7 billion.

[25]

Albert
    Grant had frisk-searched Peter Johnson earlier in the evening before the
    shooting occurred.

The Grounds of Appeal

[26]

Peter
    Johnson (the appellant) challenges two decisions made by the trial judge. He
    says that the trial judge was wrong:

i.

in ruling inadmissible the proposed expert opinion evidence of Dr. Jason
    Harlow about the likelihood that a white spot apparent on a surveillance video
    was a chain and medallion around the neck of the shooter; and

ii.

in failing to instruct the jury on the statutory partial defence of
    provocation on the count charging the appellant with second degree murder.

Ground #1: The Expert Opinion Evidence

[27]

The
    critical issue at trial was the identity of the shooter, the man whom Albert
    Grant subdued in a headlock then released when the man ceased to struggle with
    Grant. None of the eyewitnesses to the incident identified the appellant or
    anyone else as the shooter.

[28]

To
    establish that the appellant was the shooter, the Crown relied upon the
    evidence of Det. Idsinga who, over hundreds of hours, reviewed the surveillance
    video from inside and outside Whispers and compared a list of identifiers
    consisting of items of clothing and bodily appearance that matched only the
    appellant. The identifiers included a long chain and a medallion around the
    neck of the shooter. On arrest, police seized a long chain and medallion from
    the appellant who admittedly was at Whispers that evening.

[29]

Some
    additional background is helpful for an understanding of the evidence tendered
    for admission and the trial judges reasons for excluding it.

The White Object

[30]

At
    times on the surveillance video and screenshots taken from it, a white object
    is visible around the shooters neck. The Crown contended that the object was a
    medallion attached to a long chain around the shooters neck, a medallion and
    chain just like those seized from the appellant on arrest. The defence argued
    otherwise: the white object was a reflection from the collar of the white t-shirt
    underneath the outer shirt. It was not a medallion because, despite the
    struggle with Grant, the object did not appear to move between frames of the
    video as a medallion like that seized from the appellant would have done.

The Proposed Evidence

[31]

In
    support of its characterization of the white object, the defence proposed to
    elicit expert opinion evidence from Dr. Jason Harlow, a senior lecturer in
    physics at the University of Toronto. The trial judge heard the proposed
    testimony on a
voir dire
.

[32]

Dr.
    Harlow explained that a large area of his research involved the study of light,
    including observations on the movement of objects on camera, particularly of
    objects that may reflect light. He analyzed several video frames to determine
    whether a white area below the shooters head could be light reflected from a
    medallion on a long chain. Dr. Harlow concluded that although it was possible
    that the white spot apparent in the video was the chain and medallion, it was
    unlikely to be so.

[33]

The
    analysis Dr. Harlow conducted was grounded entirely on his visual observation
    that the white spot did not move between two frames of the video 0.133 seconds
    apart. His opinion was the product of his calculations regarding the speed at
    which the medallion would travel and the distance it would cover given certain
    assumptions. In his view, if the white spot were the chain and medallion, then
    it would have been in motion, as evidenced by its presence around the wearers
    neck, rather than near his navel where it would normally be.

[34]

Dr.
    Harlow calculated that if the medallion were jerked upwards as he assumed, then
    in the 0.133 second space between frames it would have moved 29 centimetres. On
    the other hand, he acknowledged that if the medallion were moving in any number
    of other directions, the speed calculations would differ significantly. Dr.
    Harlow appears to have been unaware of the altercation between the shooter and
    Grant immediately before the shooting and the possibility that the chain and
    medallion could have been in any number of different positions as a result of
    that interaction.

The Ruling of the Trial Judge

[35]

The
    trial judge excluded the proposed evidence. He determined that the testimony of
    Dr. Harlow failed to satisfy the threshold requirements for the admissibility
    of expert opinion evidence. Even if he had been satisfied that the proposed
    evidence met the threshold requirements for admission, the trial judge would have
    excluded it in the exercise of his gatekeeper function.

[36]

In
    connection with the threshold requirements, the trial judge concluded that the
    opinion Dr. Harlow proposed to express extended beyond his acknowledged
    expertise as a physicist. The opinion involved an attempt by Dr. Harlow to
    transpose calculations based on his measurements of the appellants face to
    scenes shown in the video in order to calculate various distances. Yet, these
    calculations were made without any knowledge about the positioning and operation
    of the cameras; the distance individuals were away from the cameras; potential
    distorting effects; the two-dimensional nature of the images; and the lack of
    clarity in the videos.

[37]

In
    addition, the trial judge was satisfied that the proposed evidence was neither
    relevant nor necessary. The opinion was inconclusive: the white spot could have
    been, but was not likely the chain and medallion. The jury was equally capable
    of watching the video and deciding whether the white spot was or was not the medallion.
    This was a simple matter of watching the video. Dr. Harlows calculations were not
    necessary for jurors to decide this issue. In addition, the proposed evidence
    related to an issue the jurors were not required to decide  the origin of the
    white spot. The introduction of the expert evidence was more apt to sow
    confusion and divert the fact-finding function from the jury to the expert.

[38]

At
    the gatekeeper stage of the expert evidence analysis, the trial judge
    considered the proposed evidence was of limited probative value on an issue
    that the jury could correctly decide without Dr. Harlows opinion. Further, the
    prejudicial effect of the evidence was significant in that it risked
    distracting the jury from its core task  determining whether the appellant was
    the shooter.

The Arguments on Appeal

[39]

The
    appellant says the trial judge got it wrong. Not once, but twice. At both the
    threshold and gatekeeper stages of the admissibility inquiry.

[40]

According
    to the appellant, the trial judge approached the threshold admissibility
    decision too strictly. The criticisms he expressed about Dr. Harlows testimony
    were relevant considerations for the jury to take into account in assessing the
    weight to assign to the evidence, but they were not barriers to admissibility.
    What is more, the opinion was necessary. The presence of the medallion was
    critical to the identification of the shooter. The poor quality of the video
    meant that the jury was left to speculate on an important issue for both
    parties, rather than equipped to make a fully informed decision on a subject
    beyond their experience.

[41]

At
    the gatekeeping stage, the appellant contends that the trial judge failed to
    factor into his cost-benefit analysis that this was evidence tendered by the
    defence, not by the prosecution. As a result, the trial judge failed to
    consider two important factors:

i.

that in balancing probative value and prejudicial effect, defence
    evidence may only be excluded where the prejudicial effect of the proposed
    evidence
substantially
outweighs its probative value; and

ii.

that the rules of evidence are to be applied more flexibly where the
    proponent of the evidence is the defence.

These omissions, the appellant argues, are fatal to the
    trial judges decision to exclude the evidence.

[42]

The
    respondent rejects the claim of error advanced by the appellant. The trial
    judge got it right. At both steps or stages of the analysis.

[43]

At
    the threshold stage, the respondent says, the proposed evidence was neither
    relevant nor necessary. Dr. Harlow acknowledged that, in light of his
    (unreliable) assumptions, the white glint could well have been the chain and
    medallion. This tepid conclusion lacked sufficient relevance to assist the jury
    in resolving the core issue of identification of the shooter. On the issue of identification,
    the jury was not in need of expert assistance on this single aspect of the
    identification when their conclusion required a reasoned assessment of the
    cumulative effect of several identifiers all of which pointed to the appellant.

[44]

The
    respondent says the fatal flaw in the proposed evidence was that it was laden
    with many of the detrimental indicia associated with expert evidence. It was
    apt to distract the jury from its fundamental task of determining on all the
    evidence whether the Crown had proven beyond a reasonable doubt that the
    appellant was the shooter. Its potential effect on the jury exceeded its
    reliability as probative material. And in the end, it was an opinion that
    ventured beyond its authors area of expertise.

[45]

As
    for the gatekeeper function, the respondent continues, the trial judge was
    obviously aware that the proponent of the evidence was defence counsel, not the
    Crown. Nothing said or left unsaid in the trial judges reasons reflects an
    error of law or of principle, or any material misapprehension of the evidence.
    Deference remains the due of the trial judge. The evidence was properly
    excluded.

The Governing Principles

[46]

The
    principles governing the admissibility of expert opinion evidence are well
    established and not in need of repetition. Yet, some aspects of those
    principles merit brief mention in view of the basis upon which the evidence was
    excluded and the errors alleged to warrant reversal of that decision.

[47]

To
    begin, the framework for the admissibility of expert opinion evidence was
    established to guard against the dangers posed to the litigation of disputes by
    the introduction of expert evidence. This structure endeavours to ensure, as
    best it can, that the criminal trial process does not degenerate into trial by
    expert, and safeguards the ability of the trier of fact to critically assess
    the evidence to determine whether the accuseds guilt has been proven beyond a
    reasonable doubt:
R. v. Bingley
, 2017 SCC 12, [2017] 1 S.C.R. 170, at
    para. 13;
White Burgess Langille Inman v. Abbott and Haliburton Co
.
,
    2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 17-18;
R. v. Sekhon
, 2014
    SCC 15, [2014] 1 S.C.R. 272, at para. 46. Trial by expert is neither an
    attractive nor a necessary prospect.

[48]

In
    their essence, rules of admissibility are exclusionary. They exclude evidence
    that is both relevant and material. As a rule of admissibility, the opinion
    rule excludes relevant and material evidence. It does so because we leave it to
    the trier of fact, not witnesses, to form opinions, to draw inferences and to
    reach conclusions. We exclude opinions, those ready-formed inferences, because
    they are unhelpful to the trier of fact and might even be misleading:
White
    Burgess
, at para. 14;
Graat v. The Queen
, [1982] 2 S.C.R. 819, at
    p. 836.

[49]

But
    we do not exclude every opinion expressed by a witness. For example, we
    recognize that some issues require special knowledge, skill or expertise. We
    also realize that triers of fact are not necessarily equipped to draw reliable
    inferences from facts stated by witnesses. And so we allow witnesses to tell
    triers of fact their opinions about these issues, provided that the witnesses
    are qualified to do so:
White Burgess
, at para. 15;
R. v. Abbey
,
    [1982] 2 S.C.R. 24 (
Abbey
82), at p. 42;
R. v. Vassel
, 2018
    ONCA 721, at para. 86.

[50]

The
    structure for the admissibility of expert opinion evidence has two components.
    The first  the threshold stage  imposes four basic requirements the proposed
    evidence must satisfy to qualify for reception. The second  the gatekeeper
    stage  requires the judge to balance the potential risks and benefits of
    admitting the evidence to determine whether the potential benefits justify the
    risks associated with its reception:
White Burgess
, at paras. 19, 23-24;
R. v. Abbey
, 2009 ONCA 624, 97
    O.R. (3d) 330, at para. 76, leave to appeal refused, [2010] S.C.C.A. No. 125 (
Abbey
09)
.

[51]

The
    requirements the proposed evidence must meet at the threshold stage are
    familiar:

i.

relevance
;

ii.

necessity in assisting the trier of
    fact
;

iii.

the absence of an exclusionary rule
;
    and

iv.

a
properly qualified expert
.

See
White Burgess
, at para. 19;
R. v.
Mohan
,
    [1994] 2 S.C.R. 9, at p. 20.

[52]

At
    the threshold stage,
relevance
refers to logical relevance, the
    relationship between the evidence and the fact in issue it is tendered to
    establish. Evidence is relevant where it is probative of the fact its proponent
    seeks to establish by its introduction:
White Burgess
, at para. 23;
R.
    v. J.-L.J.
, 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47;
Abbey
09
, at paras. 82, 84.

[53]

To
    satisfy the
necessity
requirement at the threshold stage, the proposed
    evidence must be more than helpful to the trier of fact in its decision. A
    standard of helpful sets the bar for the requirement of necessity too low.
    Although necessity is not to be judged by too strict a standard, the proposed
    opinion must be necessary in the sense that it provides information which is
    likely to be outside the experience of the trier of fact. The evidence must be
    necessary to enable the trier of fact to appreciate the matters in issue
    because of their technical nature. Put in another way, the subject-matter of
    the inquiry must be such that ordinary people are unlikely to form a correct
    judgment about it, if unassisted by persons with special knowledge:
Mohan
,
    at pp. 23-24;
Kelliher (Village of) v. Smith
, [1931] S.C.R. 672, at p.
    684;
Abbey
82, at p. 42.

[54]

Like
    the requirement of relevance, the necessity of the proposed expert evidence is
    assessed in light of its potential to distort the fact-finding process. If, on
    the proven facts, the trier of fact can form their own conclusions without
    help, then the opinion of the expert is unnecessary, its introduction apt to
    overwhelm the trier of fact and distract them from their task:
White Burgess
,
    at para. 21;
Mohan
, at p. 24;
R. v. Turner
, [1975] Q.B. 834,
    at p. 841;
Abbey
82, at p. 42.

[55]

At
    the second stage  the gatekeeping step  the trial judge undertakes a
    cost-benefit analysis. The judge balances on the one hand the potential risks,
    and on the other the potential benefits of admitting the evidence. The judge
    does this in order to decide where the balance settles  whether the potential
    benefits justify the risks:
Mohan
, at p. 21;
White

Burgess
,
    at para. 24;
Bingley
, at para. 16. This exercise is best considered as
    an application of the general exclusionary rule:
Mohan
, at p. 21;
Bingley
,
    at para. 16;
Abbey

09, at para. 76.

[56]

Absent
    an error of law or of principle, or a material misapprehension of the evidence,
    a trial judges decision applying the cost-benefit analysis at the gatekeeper
    stage is entitled to deference on appeal:
Abbey
09
,
at para. 97; see also
R.
    v. D. (D.)
,
2000 SCC 43, [2000] 2 S.C.R. 275, at para. 13;
R.
    v. Bonisteel
, 2008 BCCA 344, 236 C.C.C. (3d) 170, at para. 70.

[57]

Two
    brief points about the introduction of defence evidence round out this
    discussion about governing principles.

[58]

In
    connection with defence evidence, we recognize that a trial judge has a
    residual discretion to relax the strictness of admissibility rules where it is
    necessary to do so to prevent a miscarriage of justice and where the danger
    against which the rule aims to safeguard does not exist:
R. v. Williams
(1985), 18 C.C.C. (3d) 356 (Ont. C.A.), at pp. 372, 378, leave to appeal refused,
    [1985] S.C.C.A. No. 168;
R. v. Folland
(1999), 132 C.C.C. (3d) 14
    (Ont. C.A.), at para. 48;
R. v. Caesar
, 2016 ONCA 599, 339 C.C.C. (3d)
    354, at paras. 68-69. On the other hand, this discretion does not permit an
    abandonment of all conditions precedent to admissibility when the defence
    tenders the evidence:
R. v. Kimberley
(2001), 157 C.C.C. (3d) 129 (Ont.
    C.A.), at paras. 80-81, leave to appeal refused, [2002] S.C.C.A. No. 29.

[59]

A
    final point concerns the basis upon which a trial judge may exclude defence
    evidence where its prejudicial effect exceeds its probative value. Defence
    evidence may only be excluded on this basis where the prejudicial effect of the
    evidence
substantially
outweighs its probative value:
R. v.
    Seaboyer
;
R. v. Gayme
, [1991] 2 S.C.R. 577, at p. 611.

The Principles Applied

[60]

As
    I will explain, I would not give effect to this ground of appeal.

[61]

In
    my view, the trial judge was correct in refusing to admit the proposed opinion
    evidence of Dr. Harlow.

[62]

The
    context in which the evidence is tendered for admission, as well as the nature
    of the evidence itself, are important factors in any analysis and decision involving
    the reception of expert evidence.

[63]

It
    was common ground at trial that the shooter was the man whom Grant immobilized
    then released after the man approached Grant from behind within minutes of the
    robbery at Whispers. None of the eyewitnesses to the events identified the
    appellant, or anybody else, as that man and thus the shooter.

[64]

To
    establish the appellants identity as the shooter, the Crown relied on the
    cumulative force of several pieces of evidence. The video surveillance evidence
    coupled with Det. Idsingas testimony identifying the appellant as the only
    person whose image appeared on the video who shared all the characteristics of
    the shooter. In addition, the appellant was at Whispers and the DNA evidence linked
    him to Grant.

[65]

Dr.
    Harlows proposed evidence was directed at one of the several identifiers
    visible in the video surveillance from outside Whispers: a white spot visible
    on the front of the shooters shirt. The Crown submitted that this spot was a
    reflection of a chain and medallion around the shooters neck, consistent with
    the length and size of chain and medallion seized from the appellant on arrest.
    Dr. Harlow considered this reflection a possible source of the white spot, but
    said it was unlikely because the spot did not move between two frames 0.133
    seconds apart in the video surveillance.

[66]

At
    the very least, the proposed evidence failed to satisfy the necessity
    requirement at the threshold stage of the admissibility analysis. Fundamental
    to Dr. Harlows opinion were his observations of the surveillance videos and
    his conclusion that as between two frames the white spot did not move. The
    videos were available to the jury for their review. No special learning, skill
    or expertise was required to determine whether the spot moved or remained
    stationary between frames. Items of jewelry such as that seen here are
    commonplace in todays society. Likewise, their movement with the wearers
    activities. None of this was beyond the everyday experience of the members of a
    jury. Nor was it something about which the jury was unlikely to get right
    absent expert opinion from a physicist.

[67]

In
    addition, as the trial judge pointed out, at least some aspects of Dr. Harlows
    opinion appeared to extend beyond his expertise as a physicist. For example, he
    took measurements of the appellants face, then attempted to transpose them to
    scenes in the video in order to calculate various distances. It is at best
    uncertain whether this lies within the expertise of a physicist. It is all the
    more so when the conclusions are drawn without any knowledge of the operation
    of the cameras, the angles at which they were positioned, the distance of the
    objects from the cameras, the two dimensional nature of the images and so on.

[68]

The
    proposed evidence also fails at the gatekeeping stage of the analysis. Dressed
    up in scientific language and awash in a sea of mathematical formulae and
    calculations, its potential effect on a trier of fact far outstripped its
    probative value. It also tended to divert the jurys attention from their
    obligation to decide the controverted issue of identification on a single piece
    of evidence, about which the witness acknowledged uncertainty, rather than as
    the jurys obligation  the whole of the evidence. The witness had no way of
    knowing whether the medallion was stationary during the 0.133 second interval,
    or whether it had moved up and back down in that time.

[69]

I
    would reject this ground of appeal.

Ground #2: The Defence of Provocation

[70]

This
    ground of appeal alleges error in the failure of the trial judge to instruct
    the jury on the statutory partial defence of provocation and thus a verdict of
    manslaughter on this basis.
[2]
Some further background will situate this claim of error in its proper
    environment.

The Additional Background

[71]

The
    defence advanced at trial, unsupported by the appellants testimony or any
    other defence evidence, was a simple denial: I am not the man.

[72]

In
    support of his defence, the appellant pointed to several shortcomings in the Crowns
    case. He argued that the cumulative effect of the evidence adduced fell far
    short of the exacting standard of proof required in criminal cases. The videos
    were of poor quality, themselves incapable of establishing the appellant as the
    shooter. Their poor quality diminished the probative value of the evidence of
    Det. Idsinga, making it unsafe to rely upon it. The DNA evidence was unpersuasive
    in light of the appellants admission that he was at Whispers, given that there
    were other ways that the DNA could have transferred to Grants jacket, including
    that the appellant  had been searched by Grant on entry.

Provocation at Trial

[73]

Experienced
    trial counsel directed few questions to eyewitnesses to establish an
    evidentiary foundation for an argument later that provocation was in play as a
    basis for a verdict of manslaughter. Questions relating to the objective and
    subjective components of provocation. Such as the suddenness of the alleged
    wrongful act. And of the shooters response. Questions of this nature could
    have been put to witnesses like Albert Grant, the cashier and the victim who
    survived the shooting without compromise of the primary defence advanced.

[74]

The
    prospect of a verdict of manslaughter based on the statutory partial defence of
    provocation appears first to have been raised by defence counsel at trial
    during the pre-charge conference. Counsel relied on the surveillance videos as
    the basis for his submissions. He acknowledged that he had put no questions to
    any witnesses to lay an evidentiary foundation for the defence, but argued that
    he need not have done so because the groundwork was established by the video
    itself. The wrongful act relied upon was Grants manhandling of the shooter by
    putting him in a headlock and immobilizing his hands with his baton.

[75]

The
    trial Crown disputed the evidentiary foundation for provocation.

The Ruling of the Trial Judge

[76]

When
    defence counsel asked the trial judge to instruct the jury on provocation, the
    trial judge questioned whether there was any evidence of a wrongful act on
    Grants part when he responded to the man who approached him from behind. He
    also queried whether there was any evidence of a wrongful act that would
    deprive an ordinary person of the power of self-control.

[77]

Defence
    counsel argued that what was recorded on the surveillance video put the
    statutory partial defence of provocation in play. The trial judge disagreed and
    said that he would not instruct the jury on provocation.

The Arguments on Appeal

[78]

In
    this court, the appellant reiterates his submission that the events recorded on
    the video surveillance system satisfy the air of reality threshold for
    provocation. They reveal, he says, that Grant initiated the altercation with
    the shooter who approached him from behind. Grant committed an assault when he
    moved towards the shooter, put him in a headlock and immobilized his hands with
    the extendable baton. The video constituted direct evidence on both the
    objective and subjective elements of provocation.

[79]

The
    appellant says that Grants conduct was a wrongful act, an assault of the
    shooter. This act was of sufficient gravity that it could deprive an ordinary
    person of the power of self-control.

[80]

Further,
    the appellant continues, Grants wrongful act was spontaneous, not responsive
    to any physical contact by the shooter. The conduct was sudden, the shooters
    response equally so. Grants conduct and the shooters immediate response
    afford evidence on the subjective element of provocation, in particular, the
    suddenness that must characterize both the wrongful act and the shooters
    response.

[81]

The
    appellant adds that even if the surveillance videos are characterized as
    circumstantial rather than direct evidence, the air of reality threshold to
    require submission of provocation to the jury has been met. Considered as a
    whole, the evidence would leave it open to a reasonable jury to draw the
    inferences necessary to have a reasonable doubt whether the appellant was
    acting under provocation when he murdered the deceased.

[82]

The
    respondent contends otherwise. The evidence adduced at trial did not, indeed could
    not
,
satisfy the air of reality threshold to warrant submission of the
    statutory partial defence of provocation and its verdict consequence 
    manslaughter  to the jury.

[83]

The
    respondent characterizes the evidentiary foundation proposed to satisfy the air
    of reality threshold as consisting entirely of circumstantial evidence. As a
    result, the totality of this evidence must be reasonably capable of supporting
    the inferences necessary to raise a reasonable doubt about provocation. This
    means that the evidence must be reasonably capable of sustaining the essential
    inferences on both the objective and subjective elements of provocation.

[84]

The
    objective and subjective elements of provocation, the respondent reminds us,
    each include two components. The objective element includes a wrongful act or
    insult, which must be sufficient to deprive an ordinary person of the power of
    self-control. The subjective element requires not only that an accused respond
    to the wrongful act (as opposed to something else), but also that he do so on
    the sudden and before there was time for his passion to cool.

[85]

The
    respondent says that the instigating conduct, the wrongful act or insult in
    former s. 232(2), must be spontaneous and unforeseeable, not a predictable
    response to conduct of the person who seeks to rely on provocation. And it must
    make a significant impact on the person provoked, because it must be sufficient
    to cause an ordinary person to lose the power of self-control. The conduct must
    be considered in the context in which it occurred, not extracted from its surroundings
    and considered in splendid isolation.

[86]

In
    this case, the respondent continues, the shooter initiated the confrontation by
    running up to Grant from behind. Grants response was self-defending,
    predictable and brief. It ended with the shooter agreeing not to struggle,
    indicative of a resumption, not a loss of self-control. At all events, the
    prior conduct was not of such a nature or character that it would cause an
    ordinary person to lose the power of self-control and there was no evidence
    about the appellants actual state of mind.

[87]

The
    respondent joins issue with the appellants claim that the trial judge
    impermissibly weighed the circumstantial evidence and drew determinate factual
    inferences from that evidence. Not so, says the respondent. The trial judge
    simply concluded, as he was entitled to do, that the field of factual
    inferences that could be drawn from the evidence as a whole did not include
    those essential to engage the defence of provocation.

The Governing Principles

[88]

The
    parties do not differ on the essential elements of the statutory partial
    defence of provocation or on the standard the appellant was required to meet on
    the evidence adduced at trial to warrant submission of the defence to the jury.
    However, they part company on the adequacy of the evidence to satisfy the
    threshold to put the defence in play.

[89]

The
    definition of provocation applicable in this case has since been repealed. The
    former s. 232(2) of the
Criminal Code
, R.S.C. 1985, c. C-46 read:

A wrongful act or an 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 his passion to cool.

[90]

Provocation
    only arises for consideration where the Crown has proven beyond a reasonable
    doubt that, in unlawfully killing the deceased, an accused committed murder:
Criminal
    Code
, s. 232(1);
R. v. Tran
, 2010 SCC 58, [2010] 3 S.C.R. 350, at
    para. 10.

[91]

Provocation
    consists of two elements, one objective, the other subjective. Each element has
    two components.

[92]

The
objective
element consists of:

i.

a wrongful act or insult; and

ii.

the wrongful act or insult is sufficient to cause an ordinary person to
    lose the power of self-control.

See
Tran
, at para. 25;
R. v. Cairney
,
    2013 SCC 55, [2013] 3 S.C.R. 420, at para. 33.

[93]

The
    ordinary person is a legal concept, usually assimilated to the reasonable
    person. It reflects the normative dimensions of the defence. In other words,
    behaviour which comports with contemporary societys norms and values worthy of
    the laws compassion. That said, the ordinary person does take into account
    some, but not all, of the individual characteristics of the accused:
Tran
,
    at paras. 30-34;
Cairney
, at para. 37;
R. v. Thibert
, [1996]
    1 S.C.R. 37, at paras. 14, 23.

[94]

The
subjective
element requires that the accused must have:

i.

acted in response to the wrongful act or insult (the provocation); and

ii.

acted on the sudden before there was time for his or her passion to
    cool.

See
Tran
, at para. 36;
Cairney
, at
    para. 34;
R. v. Pappas
, 2013 SCC 56, [2013] 3 S.C.R. 452, at para. 34.

[95]

The
    wrongful act or insult must be sudden, in the sense that it strikes on the mind
    of an accused who was unprepared for it. Likewise, the response of the accused
    to the sudden provocation must be equally sudden. In other words, suddenness
    must characterize both the provocation and the accuseds response or reaction
    to it:
Cairney
, at para. 43;
Pappas
, at para. 35;
R. v.
    Tripodi
, [1955] S.C.R. 438, at p. 443.

[96]

A
    final point concerns the availability of provocation where the evidence tends
    to show that an accused was prepared for an insult or initiated a confrontation
    and received a predictable response which he later asserts amounted to a
    wrongful act. No absolute rule forecloses the availability of provocation in
    those circumstances. But such a result may usually follow because of the
    application of appropriate contextual factors to the question of whether an
    ordinary person would have lost the power of self-control:
Cairney
, at
    para. 45.

[97]

The
    air of reality standard determines whether a defence need be left to the jury
    for its consideration. Its purpose is not to assess whether the defence is
    likely, somewhat likely, or very likely to succeed as a matter of fact at the
    end of the trial. Rather, it seeks to ensure that only those defences with a
    sound foundation are considered by the trier of fact:
R. v. Cinous
,
    2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 53-54.

[98]

In
    general terms, the question is whether a properly instructed jury, acting
    reasonably, could have a reasonable doubt about whether the essential elements
    of a defence are made out. The test is whether there is evidence upon which a
    properly instructed jury acting reasonably could draw the inferences necessary
    to give effect to the defence:
Cinous
, at paras. 65, 82;
Cairney
,
    at para. 21;
R. v.

Mayuran
, 2012 SCC 31, [2012] 2
    S.C.R. 162, at para. 21.

[99]

Where
    the defence in issue is the statutory partial defence of provocation, the air
    of reality standard must be satisfied for both the objective and subjective
    components of the defence:
Pappas
, at para. 21. In other words, the
    test is whether a reasonable jury, properly instructed, could draw the
    inferences necessary to have a reasonable doubt whether the accused was guilty
    of murder, on the basis of the defence of provocation:
Pappas
, at
    para. 21;
Tran
, at para. 41;
Mayuran
, at para. 21;
Cairney
,
    at para. 21.

[100]

It is
    uncontroversial that the air of reality standard may be met by the introduction
    of direct evidence or circumstantial evidence. Where the evidence is
    circumstantial, however, this requires inferences to be drawn to establish the
    elements of the defence. In such cases, a trial judge may engage in a limited
    weighing of the evidence to determine whether the essential elements of the
    defence can reasonably be inferred from the evidence. But in this limited
    weighing exercise, the judge must not make findings of credibility or
    reliability, or findings of fact or draw determinate factual inferences:
Cinous
,
    at paras. 53-54, 87-91;
Pappas
, at paras. 22-25.

[101]

Sometimes
    counsel may ask a trial judge to instruct a jury on a defence that is
    inconsistent with the defence advanced at trial. The air of reality test
    controls whether a defence not specifically advanced at trial should
    nonetheless be left to the jury. The test requires examination and assessment
    of the whole of the evidence, as well as the conduct of the trial as a whole.
    Incompatibility of the proposed defence with the primary defence does not,
    without more, mean that the proposed defence lacks an air of reality:
R. v.
    Gauthier
, 2013 SCC 32, [2013] 2 S.C.R. 403, at paras. 32, 34;
R. v.
    Graveline
, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 10;
R. v.
    Doucette
, 2015 ONCA 583, 328 C.C.C. (3d) 211, at para. 30.

[102]

The nature of
    the primary defence advanced may factor into a consideration of whether there
    is an air of reality to a defence which conflicts with the primary defence:
Doucette
,
    at para. 31;
R. v. Phillips
, 2017 ONCA 752,

355
    C.C.C. (3d) 141, at para. 148. Incompatibility of the defences may leave
    evidentiary gaps on essential elements of the proposed defence that cannot be
    overcome.

The Principles Applied

[103]

I would give
    effect to this ground of appeal.

[104]

In this case, the
    evidence relied upon to satisfy the air of reality standard in connection with both
    the objective and subjective elements of provocation reduces to the
    surveillance videos and the testimony of Albert Grant.

[105]

To determine
    whether the trial judge erred in failing to instruct the jury on the statutory
    partial defence of provocation, we must decide whether there was evidence on
    the basis of which a properly instructed jury, acting reasonably, could draw
    the inferences necessary for both the objective and subjective elements of the
    defence. Although the nature of the evidence adduced at trial permitted the
    trial judge to engage in a  limited weighing of the evidence, it did not
    entitle him to make findings of credibility or reliability, as for example in
    connection with Albert Grants testimony, or findings of fact or to draw
    determinate inferences.

[106]

To take first,
    the objective element of provocation: a wrongful act or insult sufficient to
    cause an ordinary person to lose the power of self-control.

[107]

It was open to
    the jury to infer that Grants conduct  putting the shooter in a headlock,
    immobilizing his hands and arms with a baton and taking him forcefully to the
    ground  was a wrongful act. There was no evidence the shooter contacted Grant.
    Nor does the mere fact that the shooter approached Grant from the rear necessarily
    undermine the inference that Grants response was sudden and wrongful. In
    addition, it was open to the jury to infer that Grants conduct could cause an
    ordinary person to lose the power of self-control. The jury was not required to
    accept Grants testimony that the shooter calmed down before Grant released him
    and the shots were fired.

[108]

Turning to the
    subjective element of provocation: that the accused acted on the provocation on
    the sudden before there was time for his passion to cool. It was open to the
    jury to infer that the shooters response to Grants wrongful act was sudden,
    thus before the passion aroused by that wrongful act had time to cool.

[109]

What controls
    the obligation of the trial judge to submit the statutory partial defence of
    provocation to the jury for its determination is the capacity of the evidence
    adduced at trial to support the inferences essential to give effect to the
    defence. In my view, the evidence in this case met that standard. It is not for
    me, as it was not for the trial judge, to say whether the defence was likely,
    somewhat likely, very likely or not at all likely to succeed as a matter of
    fact.

[110]

In reaching this
    conclusion that the partial statutory defence of provocation should have been
    left to the jury, I am not unmindful of the failure of trial counsel to develop
    a more fulsome foundation for that defence. That he did not do so in light of
    his primary defence  identity  is understandable. In every event, the air of
    reality standard is what engages the trial judges obligation. Once satisfied,
    the obligation follows. The issue is whether the standard is met, not by how
    much or how little it is satisfied. I have also kept in mind the instruction of
    the Supreme Court of Canada that in cases of doubt about the availability of
    the statutory partial defence, provocation should be left to the jury.

CONCLUSION

[111]

For these reasons, I would allow the appeal, set aside the conviction of second degree murder and order a new trial on that count of the indictment.

Released: DW FEB 25 2019

David Watt J.A.

I agree. G. Pardu J.A.

I agree. L.B. Roberts J.A.





[1]
The jury also found him guilty of two counts of discharging a firearm with
    intent to endanger life.



[2]
The trial judge did instruct the jury on the availability of a manslaughter
    verdict based on inadequate proof of the fault element in murder.


