



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Forcillo, 2018 ONCA 402

DATE: 20180430

DOCKET: C62370

Strathy C.J.O., Doherty and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Forcillo

Appellant

Michael Lacy, Joseph Wilkinson and Bryan Badali, for the
    appellant

Howard Leibovich, Susan Reid and Michael Perlin, for the
    respondent

Heard: October 2 and 3, 2017, with additional written submissions
    received on December 4 and 18, 2017.

On appeal from the conviction entered by Justice Edward
    F. Then of the Superior Court of Justice, dated January 25, 2016, sitting with
    a jury, and from the constitutional ruling, dated July 29, 2016, with reasons
    reported at 2016 ONSC 4896, and from the sentence imposed, dated July 28, 2016,
    with reasons reported at 2016 ONSC 4850.

By the Court:


I



A.

overview

[1]

Shortly before midnight on July 27, 2013, the appellant, a Toronto
    police officer, and his partner responded to a report that a young man was
    wielding a knife on a crowded streetcar. That young man was Sammy Yatim.

[2]

When the appellant and his partner arrived at the scene, the appellant
    took up a position on the street directly outside of the streetcar door. He
    drew his firearm. Mr. Yatim was standing alone inside the streetcar holding a
    knife. The appellant told Mr. Yatim to drop the knife several times. Mr. Yatim
    ignored these demands and uttered obscenities at the appellant. Mr. Yatim moved
    toward the appellant. The appellant opened fire. He fired three shots in rapid
    succession. Mr. Yatim fell to the streetcar floor, fatally wounded. Five and
    one half seconds later, the appellant opened fire a second time, firing six
    bullets at Mr. Yatim as he lay on the floor.

[3]

The medical evidence established that one of the shots fired in the
    first volley struck Mr. Yatim in the heart. That shot was fatal. Mr. Yatim was
    dying, but he was not dead before the second volley of shots hit him. The
    medical experts could not say that any of the shots from the second volley accelerated
    Mr. Yatims death. In other words, the shots fired in the second volley were
    not legally causally connected to Mr. Yatims death. His death was caused
    exclusively by a shot fired in the first volley.

[4]

The appellant testified and acknowledged that he shot and killed Mr.
    Yatim. He claimed that the shooting was justified under either s. 25 (lawful
    use of force) or s. 34 (self-defence) of the
Criminal Code
.

[5]

The Crown preferred a two-count indictment. The first count alleged
    second degree murder. The Crown argued that when the appellant fired the first
    volley of shots, including the shot that caused Mr. Yatims death, he had the
    intent required for murder under s. 229(a) of the
Criminal Code
and
    his conduct could not be justified under s. 25 or s. 34.

[6]

Count two alleged attempted murder. This count focused on the second
    volley of shots. The Crown argued that when the appellant opened fire the
    second time, he intended to kill Mr. Yatim and his actions could not be
    justified under s. 25 or s. 34. The Crown maintained that the appellant was guilty
    of attempted murder because, although Mr. Yatim was alive, the medical evidence
    could not establish a connection between the second volley of shots and the
    cause of Mr. Yatims death. The Crown reasoned that as the shots in the second
    volley had no causal connection to Mr. Yatims death, the appellant could not
    be convicted of murder based on the second volley. The absence of any causal connection
    did not, however, preclude a conviction on the charge of attempted murder as
    long as the appellant believed Mr. Yatim was alive.

[7]

The trial was hard fought. The jury returned verdicts of not guilty of
    second degree murder on count one, and guilty of attempted murder on count two.
    The verdicts indicate that the Crown had failed to prove beyond a reasonable
    doubt that the first volley of shots was not justified under either s. 25 or s.
    34, but had proved beyond a reasonable doubt that neither defence applied in
    respect of the second volley of shots.

[8]

The combination of verdicts returned by the jury presents an unusual, if
    not unique, result. The appellant stands acquitted of murdering Mr. Yatim and
    he stands convicted of attempting to murder Mr. Yatim, some 5.5 seconds later. In
    effect, the appellant has been convicted of attempting to murder the very same person
    he was found to have justifiably fatally shot just 5.5 seconds earlier.

B.

the appeals

[9]

The appellant appeals from the conviction on the attempted murder
    charge. There is no appeal from the acquittal on the murder charge. The
    appellant also seeks leave to appeal from the six-year sentence that the trial
    judge imposed on the attempted murder conviction.

[10]

The
    conviction appeal has two parts. One part, based on the trial record, focuses primarily
    on the propriety of the Crown preferring a separate count charging attempted
    murder in relation to the second volley of shots. To quote the appellants
    factum:

At the Crowns urging, and over the objection of the appellant,
    the trial judge instructed the jury to consider the single shooting transaction
    as two discrete events and to determine the appellants culpability separately
    for each. One of the fundamental questions on this appeal is whether such a
    state of affairs is logically perverse and legally impermissible.

[11]

The
    appellant also submits that the trial judge improperly excluded certain
    evidence said to be relevant to Mr. Yatims state of mind at the time of the
    confrontation with the appellant.
[1]

[12]

The
    second part of the conviction appeal arises out of the appellants motion to
    adduce fresh evidence on appeal from two experts relating to the impact of
    high-stress, life-threatening situations on perception and cognition. What the
    appellant saw and what he believed he saw before he fired the second volley of
    shots were crucial factual issues in relation to count two. The expert evidence
    offered for the first time on appeal is said to add important evidence on that
    issue.

[13]

The
    sentence appeal addresses the constitutionality of the four- and five-year
    minimum sentences imposed on persons who commit attempted murder with a firearm,
    and the fitness of the six-year sentence ultimately imposed upon the appellant.

C.

the facts

[14]

The
    evidence at trial was lengthy, but it is unnecessary for the purposes of this
    appeal to review most of that evidence in detail.

[15]

Just
    before midnight, Mr. Yatim boarded a streetcar heading west on Dundas Street in
    Toronto. He had consumed ecstasy. Not long after Mr. Yatim got on the
    streetcar, he exposed his genitals to other passengers. A short time later, he
    got up from his seat brandishing a knife. Mr. Yatim made a sweeping gesture
    with the knife near a young womans neck. She screamed and moved toward the
    front of the streetcar away from Mr. Yatim. Other occupants in the streetcar quickly
    did the same thing. Mr. Yatim followed the crowd of passengers, moving toward
    the front of the streetcar, still brandishing the knife with his genitals
    exposed. The passengers were terrified.

[16]

The
    driver stopped the streetcar. The other occupants exited through the front door,
    leaving only Mr. Yatim and the driver on the streetcar. The driver spoke to Mr.
    Yatim, who mumbled obscenities and threats. He said he wanted to call his
    father. When Mr. Yatim saw the police car approaching, he screamed various
    obscenities and moved threateningly in the direction of the driver. The driver
    got up and quickly exited the streetcar through the front door, leaving Mr.
    Yatim alone standing near the front door of the streetcar.

[17]

The
    appellant and his partner were in their patrol car when they received a
    priority call indicating that there was a person with a knife on a streetcar.
    They arrived at the scene before any other police personnel. They approached
    the streetcar on foot. The appellant saw Mr. Yatim with a knife. He drew his
    firearm and stood on the street directly in front of the streetcar door, about ten
    feet away, placing himself between the appellant and bystanders on the street.

[18]

The
    appellant told Mr. Yatim to drop the knife several times. Mr. Yatim refused to
    drop the knife and uttered obscenities. Another officer,
Officer
    Kim, stood beside the appellant with his weapon drawn and pointed at Mr. Yatim.

The appellant told his partner to call for a taser. He
    thought that Mr. Yatim could be high on drugs.

[19]

The
    appellant repeatedly screamed at Mr. Yatim to drop the knife and Mr. Yatim
    continued to refuse to do so, responding with mocking profanities. Mr. Yatim
    stepped back a few feet away from the top of the stairs leading to the
    streetcar door. The appellant said, If you take one step closer I will shoot you,
    Im telling you right now.

[20]

A
    few seconds later, Mr. Yatim stepped toward the doorway of the streetcar in the
    appellants direction. He had the knife in his right hand. Before Mr. Yatim reached
    the streetcar steps, the appellant opened fire, firing three hollow point
    bullets in two seconds.

[21]

All
    three bullets hit Mr. Yatim. One bullet struck his heart, one severed his spine,
    paralyzing him from the waist down, and one hit him in the upper right arm,
    shattering his arm. The appellant fired this volley of shots about 45 seconds
    after he arrived on the scene.

[22]

The
    appellant testified that immediately before Mr. Yatim started to move toward
    him, he saw Mr. Yatim take a deep breath as if he was making a decision. Mr.
    Yatims eyes opened wide and his jaw clenched. He flicked the knife at the
    appellant. The appellant testified that he believed that Mr. Yatim was going to
    attack him and that he needed to use lethal force to stop him. When Mr. Yatim
    did not stop in response to the appellants demands and did not drop the knife,
    the appellant opened fire.

[23]

Mr.
    Yatim fell backward on to the streetcar floor, fatally wounded. He was lying on
    his back and somewhat on his right side. As he lay there, he retrieved the knife
    in his right hand and using his left hand, pulled his shattered right arm
    across his body onto his chest. He held the knife on his chest using both hands.
    Mr. Yatims legs were pulled up in a stacked position.

[24]

The
    appellant testified that after he shot Mr. Yatim, and Mr. Yatim was lying on
    the floor, he immediately reassessed the danger that Mr. Yatim posed to him.
    The appellant had been trained to make these constant reassessments in such
    circumstances. He knew he had shot Mr. Yatim. He did not say anything to Mr.
    Yatim.

[25]

The
    appellant testified that Mr. Yatim began to get up from the floor, lifting his
    torso to a 45-degree angle from the floor. He believed that Mr. Yatim, still
    armed with a knife, was about to renew his attack. The appellant aimed at Mr.
    Yatims centre mass and opened fire. He fired six shots. He fired this volley
    somewhat more deliberately than the first round. Five of the six bullets struck
    Mr. Yatim.

[26]

The
    encounter between Mr. Yatim and the appellant was captured on the streetcar video
    and audio surveillance. That surveillance showed, contrary to the appellants
    evidence, that after Mr. Yatim fell to the floor having been struck by the first
    volley of shots, his torso never moved from the floor. He was partially paralyzed,
    on the verge of death, and did not move from the floor.

[27]

The
    appellant testified that he knew that Mr. Yatim could not hurt him while he was
    lying on the floor. He also acknowledged that he would not have fired the
    second volley had he appreciated, as the video showed, that Mr. Yatim remained
    on the floor and did not start to get up.

[28]

Another
    officer arrived at the streetcar door with a taser shortly after the appellant
    fired the second volley. The officer boarded the streetcar. He saw Mr. Yatim
    still clutching the knife in his hand. He ordered Mr. Yatim to drop the knife
    and when he did not, the officer tasered Mr. Yatim. According to the medical
    evidence, Mr. Yatim was likely dead before he was tasered.

D.

the positions at trial

[29]

The
    trial turned on whether the Crown could prove beyond a reasonable doubt that
    the shots the appellant fired were not justified, either under s. 25
    (protection of persons administering or enforcing the law) or s. 34 of the
Criminal
    Code
(self-defence). For our purposes, it is unnecessary to distinguish
    between the two provisions. The appellant does not allege any misdirection or
    non-direction with respect to the essential elements of either defence. Both defences
    turned on whether the Crown could prove beyond a reasonable doubt that the
    appellant did not reasonably perceive that Mr. Yatim posed an imminent threat
    to him, justifying the use of lethal force.

[30]

The
    trial judge instructed the jury that they should consider the justification
    defences as applied to the first volley of shots in considering their verdict
    on count one and as they applied to the second volley of shots in considering
    their verdict on count two. The verdicts indicate that the jury reached
    different conclusions on the availability of the defences as they applied to each
    volley of shots.

[31]

The
    appellants contention that he was justified in firing both volleys rested
    largely on his own testimony. In respect of the first volley, the appellant
    testified that Mr. Yatim, who was acting very erratically and aggressively, had
    ignored the appellants repeated strong demands that he drop the knife.
    Instead, Mr. Yatim had moved toward the appellant in a menacing manner,
    flicking the knife in his direction. The appellant was about ten feet away from
    Mr. Yatim. He testified that he believed, based on his observations at the
    moment before he fired the first volley, that Mr. Yatim posed an imminent
    threat of serious bodily harm to him. He fired the first volley in the face of
    that imminent threat.

[32]

In
    respect of the second volley, two features of the appellants testimony are
    significant. First, he acknowledged that, as he had been trained to do, he
    continually reassessed the danger that Mr. Yatim posed as the confrontation
    evolved. The appellant realized that at least one bullet from the first volley
    hit Mr. Yatim and knocked him to the floor. According to the appellant, in the
    5.5 seconds between the first and second volleys, he continued to reassess the
    threat that Mr. Yatim posed.

[33]

Second,
    the appellant testified that as he looked at Mr. Yatim lying on the streetcar
    floor, he believed he saw Mr. Yatim begin to get up.
[2]
This action, combined with Mr. Yatims continued possession of the knife, led
    the appellant to fear for his safety:

Mr. Yatim, had rearmed himself with the knife, was in the
    process of getting up with this knife to continue his knife attack. At that
    point, I felt the appropriate use of force response was my firearm.

[34]

The
    appellants belief that Mr. Yatim was getting up from the floor was one of the
    two things that caused him to conclude that Mr. Yatim was about to continue the
    attack. That belief played a central role in the appellants testimony in
    support of his claim that the second volley was justified.

[35]

The
    streetcar surveillance video established that after Mr. Yatim fell to the
    ground, having been struck in the first volley, his back remained on the floor.
    The defence accepted that the video surveillance was accurate, but argued that
    the appellant was entitled to rely on his mistaken perception.

[36]

In
    an effort to show that the appellant could have reasonably, but mistakenly,
    perceived Mr. Yatim to be getting up from the floor, the defence called the expert
    evidence of Dr. Laurence Miller, a forensic psychologist. He testified that
    individuals placed in very dangerous circumstances sometimes experience
    perceptual and cognitive distortions due to the bodys physiological stress
    response. Dr. Miller acknowledged that police training could help an officer
    cope with or compensate for stress-related changes. He further testified,
    however, that training was necessarily limited as it could not predict every
    dangerous scenario police officers may encounter.

[37]

It
    is unnecessary to review Dr. Millers evidence in detail at this stage. The
    proposed fresh evidence addresses the potential impact of the human stress
    response on perception and cognition. Dr. Millers evidence will be referred to
    in more detail when examining the admissibility of the evidence offered on
    appeal.

E.

grounds of appeal

(1)

Can the conviction
    for attempted murder stand?

[38]

The
    appellant submits that the conviction on the charge of attempted murder on
    count two cannot stand beside the acquittal on the murder charge in count one.
    The appellant describes the conviction for attempted murder as inconsistent
    with the acquittal on the murder charge and unreasonable on the totality of the
    evidence. The appellant submits that the Crown, by laying separate counts of
    murder and attempted murder, improperly parsed the killing of Mr. Yatim into
    two discrete events to be considered in isolation from each other. In doing so,
    the appellant contends that the Crown invited the jury to reach a compromise
    verdict that defied common sense and ignored the reality of the circumstances
    in which the appellant shot and killed Mr. Yatim.

[39]

The
    appellant argues that the trial judge should have taken count two away from the
    jury, or alternatively instructed the jury that they could consider count two
    only if satisfied beyond a reasonable doubt that the second volley of shots
    constituted a discrete transaction and was not part of the same transaction
    as the first volley of shots.
[3]

[40]

The
    arguments of counsel for both parties covered a broad range and a variety of
    hypotheticals. In our view, this ground of appeal comes down to a single question:

Was there a basis in the evidence upon which a properly
    instructed jury could reasonably draw distinctions between the circumstances in
    which the first volley was fired and the circumstances in which the second
    volley was fired so as to warrant a finding that the Crown had failed to prove
    beyond a reasonable doubt that the first volley was not justified, but had
    proved beyond a reasonable doubt that the second volley was not justified?

If that basis existed in the evidence, the jury was
    entitled to draw the distinction it did as to the applicability of the
    justification defences and return the different verdicts it returned.

[41]

In
    posing the question as we do, we do not suggest that the jury was required to
    look at the circumstances pertaining to the second volley without regard to the
    preceding circumstances, including the firing of the first volley. Nor did the
    trial judge so instruct the jury. The events leading up to the second volley,
    including the first volley, were an important part of the circumstances that the
    jury had to consider in deciding whether the Crown had proved beyond a
    reasonable doubt that the second volley was not justified.

[42]

Having
    reviewed the evidence, we accept the Crowns submissions that the evidence was
    reasonably open to the interpretation that the circumstances pertaining to the
    first and second volleys were significantly different, and that those
    differences left it reasonably open to the jury to come to different
    conclusions as to the availability of the justification defences as applied to
    each volley.

[43]

On
    the evidence, the appellant fired the first volley as an obviously distraught and
    non-compliant Mr. Yatim stepped toward him armed with a knife that he flicked
    in a menacing manner. Mr. Yatim did not stop, despite the repeated demands from
    the appellant. These circumstances provided a basis for a reasonable doubt as
    to whether the use of deadly force was justified. The jury had at least such a
    reasonable doubt and acquitted on count one.

[44]

The
    second volley was fired 5.5 seconds later when, on the appellants own evidence,
    he realized that he had shot Mr. Yatim and Mr. Yatim was lying on the streetcar
    floor. He was holding the knife on his chest with both hands. While the
    appellant maintained that he believed Mr. Yatim was in the act of rising from
    the floor when he opened fire, surveillance video contradicted that belief.

[45]

There
    were obvious differences between the circumstances as they existed when the
    appellant fired the first volley, and the circumstances as they existed when he
    fired the second volley. Those differences could reasonably have led the jury to
    come to different conclusions as to what the appellant perceived when he opened
    fire.

[46]

The
    jury was entitled to reject the appellants evidence that he thought Mr. Yatim was
    getting up when he fired six shots at Mr. Yatim from ten feet away. If the jury
    rejected that evidence and instead concluded that when the appellant opened
    fire, he saw Mr. Yatim lying on his back on the streetcar floor, just as the
    video surveillance showed, the jury would have little difficulty concluding
    that Mr. Yatim posed no imminent threat to the appellant and the appellant knew
    it. If the jury came to those factual conclusions, the appellants
    justification defences could not succeed on count two.

[47]

The
    appellant was not prejudiced in the conduct of his defence by the inclusion of
    two counts in the indictment, one of which referred to the second volley. The
    Crown made it clear from the outset that count one related to the first volley
    and count two related to the second volley. The inclusion of a separate count
    in relation to the second volley promoted trial fairness and the appellants
    ability to effectively present his defence, by making the Crowns position and
    its theory of liability crystal clear from the outset of the trial.

[48]

Not
    only did the inclusion of two counts in the indictment, and the Crowns theory
    with respect to liability for those two counts, not prejudice the appellant in
    his defence, they were consistent with the appellants own evidence. The
    appellant did not testify that the second volley was a continuation of the
    first based on the continuation of the threat as he perceived it when he fired
    the first volley. Rather, he testified that the circumstances had changed after
    he fired the first volley. Mr. Yatim had been hit and was lying on the ground.
    The appellant testified that, as he had been trained to do, he reassessed the
    situation in the 5.5 seconds between the two volleys. On his evidence, it was Mr.
    Yatims retrieval of the knife, combined with his getting up from the floor, that
    caused the appellant to conclude that he was, once again, in imminent danger
    and justified in using lethal force a second time. The appellants own evidence
    was consistent with the Crowns approach to the encounter between him and Mr.
    Yatim on the streetcar.

[49]

Nor
    do we accept that the jury should have been told they could convict on count
    two only if satisfied beyond a reasonable doubt that the second volley of shots
    was a discrete transaction from the first. The jury had two counts to
    consider. The characterization of conduct as involving one or more transactions
    is primarily a distinction drawn for the purposes of determining whether a
    charge as framed by the Crown conforms with the pleading requirement in s. 581
    and s. 589 of the
Criminal Code
. There is no pleadings rule that one
    transaction cannot give rise to more than one charge. The characterization of
    two volleys as one or two transactions was irrelevant to the jurys
    determination of whether the Crown had proved the allegation in either or both
    counts in the indictment beyond a reasonable doubt.

[50]

The
    trial judge told the jury that evidence relevant to the justification claim as
    it applied to the second volley included the events surrounding the first
    volley. He referred to the defence evidence of priming. Stripped to its
    essentials, that evidence indicated that the appellants perceptions when he
    fired the second volley could be heavily influenced by the very dangerous
    encounter he had with the appellant only seconds before he fired the second
    volley. That evidence could support the defence claim that the appellants
    perception that he was in imminent danger of serious harm when he fired the
    first volley impacted on his perceptions when he fired the second volley.

[51]

It
    was important that the jury understand the potential relationship between the
    circumstances surrounding the first volley and the justification defence as it
    related to the second volley. The jury could, however, make that connection and
    properly assess the evidence relating to the first volley without concerning itself
    as to whether the two volleys constituted one or two transactions.

[52]

In
    summary, we find no error or prejudice in the Crowns decision to prefer both
    counts in the indictment. The verdicts on the counts are neither unreasonable,
    nor inconsistent. The trial judges instructions on the relationship between
    the events leading up to the first volley and the appellants apprehension of
    imminent harm when he fired the second volley were accurate and fair. We reject
    the arguments put forward under this ground of appeal.

(2)

Did the trial judge
    err in excluding evidence relevant to Mr. Yatims state of mind?

(i)

The evidence at trial

[53]

The
    defence sought to introduce evidence as to Mr. Yatims state of mind at the
    time of his confrontation with the appellant. The defence maintained that the
    evidence would support a finding that Mr. Yatim, who was by all accounts a
    troubled young man that evening, had decided to kill himself by provoking a
    confrontation with the police in which the police would be forced to kill him. According
    to the defence, this was a case of suicide by cop.

[54]

The
    evidence offered by the defence to support this position came from two sources.
    First, the defence offered text messages sent and Google searches conducted by
    Mr. Yatim in the days, weeks, and months before his death, which the defence
    claimed showed that Mr. Yatims life was falling apart on many levels. He was
    suicidal and had accessed information about suicide on at least one occasion. The
    defence argued that the text messages and Google searches, considered as a
    whole, painted a picture consistent with a person who had decided to
    precipitate a deadly confrontation with the police.

[55]

The
    appellant had no knowledge of Mr. Yatims text messages or Google searches. There
    is no suggestion that he had any reason to think that Mr. Yatim had decided to
    commit suicide by cop.

[56]

The
    second source of evidence said to support the suicide by cop theory came from
    Dr. Richard Parent, a criminologist who was offered as an expert in the
    phenomenon. Dr. Parent opined, on the basis of the information provided to him
    concerning the actual confrontation between the appellant and Mr. Yatim as well
    as the information relevant to Mr. Yatims background, that Mr. Yatim was most
    likely engaged in aggressive and provocative conduct toward the police in the
    hope that it would provoke the police into shooting him.

(ii)

The
    trial judges ruling

[57]

In
    his reasons, the trial judge outlined several reasons for refusing to admit the
    evidence of the contents of Mr. Yatims cellphone and his Google searches.
    First, the trial judge concluded that the evidence did not provide a basis upon
    which any reasonable inferences could be drawn concerning Mr. Yatims state of
    mind at the time of the confrontation. In the trial judges view, any
    conclusions drawn from this material about Mr. Yatims state of mind would be
    speculative.

[58]

Next,
    the trial judge observed that the entirety of Mr. Yatims conduct was apparent
    from the surveillance video. In his view, there was no need to resort to
    speculative inferences drawn from Mr. Yatims state of mind to determine what
    had happened between Mr. Yatim and the appellant. What did or did not happen was
    plain to see on the surveillance video.

[59]

Finally,
    the trial judge rejected the contention that the evidence could inform the
    appellants state of mind, and in particular, whether he reasonably perceived himself
    to be in imminent danger. The trial judge observed:

The perception of the accused in this case that he was under
    imminent attack by the deceased relates to his perception of the deceaseds
    conduct, not to the deceaseds state of mind or past conduct of which he knows
    nothing in circumstances where the conduct at the time of the shooting is both
    video and audio taped.

[60]

The
    trial judge rejected Dr. Parents evidence because, like the evidence of the
    text messages and Google searches, it was entirely redundant as evidence of
    what Mr. Yatim did or did not do, in the face of the surveillance video.

[61]

The
    trial judge also rejected Dr. Parents evidence as not the proper subject matter
    of expert testimony. Lastly, the trial judge expressed concerns about the
    threshold reliability of Dr. Parents evidence.

[62]

For
    the most part, the trial judge did not draw a distinction for admissibility
    purposes between the two counts in the indictment. However, near the end of his
    reasons, he focused on the attempted murder count. In holding that the evidence
    could not assist in determining what Mr. Yatim did or did not do prior to the
    second volley, the trial judge observed:

This is particularly germane to the second volley of shots as
    the videotapes indicate the deceased remained on his back as a result of the
    first volley of shots while the accuseds evidence was that he shot at the
    deceased six times because he only perceived the deceased to be an immediate
    threat because he rose to a 45 degree angle in order to renew his attack. With
    respect to the accuseds second volley, the accuseds defence is based on
    mistake of fact and accordingly, the state of mind of the deceased has no
    relevance to the resolution of count two on any basis.

(iii)

Analysis

[63]

The
    trial judges reasons are persuasive. The evidentiary problem presented in this
    court is, however, simpler than that faced by the trial judge. As the appellant
    was acquitted on the murder charge, this court is concerned only with the
    admissibility of the evidence on the attempted murder charge. The evidence had
    no relevance to that charge.

[64]

Even
    assuming, for the purpose of considering this argument, that Mr. Yatim had
    decided to provoke a confrontation with the police to bring about his own
    death, there is no evidence to suggest that the appellant knew that to be Mr.
    Yatims state of mind. As the appellant had no knowledge of Mr. Yatims state
    of mind, Mr. Yatims state of mind could not possibly impact on either the
    appellants apprehension of the risk that Mr. Yatim posed to him, or the
    appellants belief that he had to use lethal force to defend himself.

[65]

Evidence
    of Mr. Yatims state of mind was equally unhelpful as circumstantial evidence
    of what Mr. Yatim did or did not do after he was hit by the first volley, and
    before he was hit by the second. There is no dispute about what Mr. Yatim did.
    His actions are caught by surveillance. Even assuming Mr. Yatim wanted more
    than anything to get up to provoke a further confrontation so that the police
    would kill him, the surveillance evidence makes it absolutely clear that he did
    not do so. Evidence that Mr. Yatim wanted to get up could have no value as
    circumstantial evidence of what he did between the two volleys.

[66]

In
    oral argument, when pressed as to the relevance of Mr. Yatims state of mind on
    the attempted murder charge, counsel submitted that the evidence that Mr. Yatim
    wanted to provoke the police into shooting him made the appellants evidence
    that he believed, albeit mistakenly, that Mr. Yatim had started to get up from
    the streetcar floor, more credible. With respect, we see no connection between
    the credibility of the appellants evidence about what he thought he saw and
    evidence of what was in Mr. Yatims mind. One has nothing to do with the other,
    unless the appellant had knowledge of Mr. Yatims state of mind.

[67]

The
    appellant also advanced an alternative argument in favour of admitting the
    evidence of Mr. Yatims state of mind. He submitted that the evidence was
    admissible to rebut the Crowns evidence depicting Mr. Yatim as a troubled, but
    not aggressive young man who was obviously in a state of crisis on the
    streetcar.

[68]

The
    Crowns evidence referred to by the appellant was part of the narrative
    describing the events leading up to Mr. Yatims confrontation with the
    appellant. Both the Crown and the defence elicited a great deal of evidence
    about Mr. Yatims conduct on the streetcar. Both urged the jury to come to
    different conclusions about the nature of that conduct.

[69]

We
    agree with the trial judge that no purpose would be served by expanding the
    evidence to include Mr. Yatims text messages and Google searches. The jury had
    a full picture of Mr. Yatims conduct from shortly before he boarded the
    streetcar until his death. As the jurys acquittal on count one demonstrates,
    there was no risk that the jury had a one-sided misleading picture of Mr. Yatim
    as a non-aggressive individual who posed no risk to the appellant when they
    first confronted each other.

[70]

We
    are satisfied that Mr. Yatims state of mind at the time of the initial
    confrontation with the appellant had no relevance to either what Mr. Yatim did or
    to the appellants belief of what Mr. Yatim did between the first and second
    volleys. This ground of appeal fails.

F.

The Fresh evidence

[71]

The
    appellant applies to adduce fresh evidence on this appeal. The evidence
    consists of two brief reports, each written by a psychologist  Dr. Judith P.
    Andersen and Dr. William R. Lovallo. The appellant seeks to admit these reports
    to add to the evidence of its own expert at trial, Dr. Laurence Miller, who
    gave opinion evidence concerning the impact of high-stress, life-threatening
    situations on perception and cognition.

[72]

The
    appellant brought this application after the appeal was already perfected and
    listed for hearing. Given this timing, the Crown brought a pre-hearing motion,
    in writing, arguing that the appellant required leave to introduce the fresh
    evidence, and that leave should be denied because the application demonstrated
    no real merit and there was no good explanation for the late filing of the
    application. The panel rejected the Crowns request and decided to hear the
    application on the merits, in the normal course. However, because the Crown was
    not in a position to respond to the application by the hearing date, all
    grounds of appeal except the fresh evidence application were argued at the oral
    hearing. The panel decided that the fresh evidence application would be
    considered at a later date.

[73]

The
    Crown did not cross-examine either fresh evidence witness, nor did it attempt
    to adduce evidence in response. Counsel were content that the fresh evidence
    application could be decided without further oral argument. Having reviewed the
    materials filed, we did not require the attendance of counsel for oral
    submissions.

[74]

For
    the following reasons, the application to admit the fresh evidence is
    dismissed, primarily because it has not been established that the evidence
    could reasonably be expected to have affected the result at trial. The
    proffered evidence is largely a repetition of the expert evidence that the
    defence led at trial. It is adduced in an attempt to bolster the appellants
    claim that he honestly believed that he saw Mr. Yatim rise to a 45-degree angle
    just before firing the second volley. However, the fresh evidence does not
    advance the appellants position at all. Neither expert sheds light on the
    likelihood of the appellant experiencing the perceptual distortion or
    hallucination that he claims.

(1)

The issue and the
    evidence at trial

[75]

At
    trial, the Crown called Deputy Chief Federico of the Toronto Police Service (TPS)
    to testify about police training and use-of-force situations. He testified that
    TPS officers are trained under simulated conditions. Trainers provide officers
    with a sense of what they would encounter in such situations, which are
    stressful and can cause officers to experience physiological changes, such as
    shallow breathing, rapid heart rates, and sweaty palms, as well as perceptual
    problems. As Deputy Chief Federico explained:

You know, these are sensations that human beings will
    experience under stressful situations. So we try to recreate that stress in the
    scenario so that the officers can recognize it and work through it so that they
    are practiced in carrying out their assignment under a stressful situation, to
    the extent that we can simulate that, and thats called stress inoculation.

[76]

In
    cross-examination, Deputy Chief Federico agreed that an officer may experience
    tunnel vision (
i.e.
, being hyper focused on the source of the threat
    to the exclusion of other circumstances) and may experience perceptual problems
    about certain aspects of an encounter, such as how quickly the events took
    place, and the number of shots fired.

[77]

Deputy
    Chief Federico acknowledged limitations with the training provided to officers.
    It is impossible to account for every dangerous situation police officers may
    encounter. Moreover, there are limitations inherent in simulations, as opposed
    to real life events.

[78]

The
    defence led the expert opinion evidence of Dr. Laurence Miller, a clinical
    psychologist with extensive academic, practical, and clinical experience in
    police psychology. In an unreported ruling, the trial judge admitted the
    evidence of Dr. Miller on the psychophysical effects of critical incident
    stress on the human mind. The trial judge permitted him to give expert
    opinion [evidence] as to the cognitive and perceptual effects that may be
    experienced by a police officer during an officer involved shooting. More
    specifically, especially for the purposes of this ground of appeal, the trial
    judge said:

Also in the absence of Dr. Millers evidence as to the effects
    of priming and magnification of threat the jury may not properly evaluate
    the credibility of the accuseds assertion that he perceived the deceaseds
    torso rise to the extent of 45 degrees as a prelude to a renewed attack in
    circumstances where the videos demonstrate a negligible rise if any.

[79]

Dr.
    Miller testified about critical incident stress and the physical, cognitive,
    and perceptual effects that accompany that stress. He testified that the human
    stress response has been studied for over 100 years and we know very reliably
    from study after study that there are certain physiological changes that occur
    in the body under stress. In terms of those physiological changes, Dr. Miller
    testified that stress causes chemicals such as cortisol to be secreted in the
    body and brain, causing, among other reactions, rapid heart rate, shallow
    breathing, numbness and tingling of the extremities, tight muscles, and
    perhaps a sense of cloudiness and confusion.

[80]

Two
    critical and related concepts were discussed in Dr. Millers testimony 
    priming and magnification. Priming, or sensitization, is the
    neurological response that occurs when a person has already experienced a
    stressful or dangerous situation. As Dr. Miller testified: Something about the
    first stimulus sensitizes or primes that group of brain cells to respond in a
    much more exaggerated fashion, even to whats considered subliminal or very
    mild subsequent stimulus. He described it again in the following way: the brain
    is primed to recognize a threat and if a threat fails to be neutralized, if the
    threat repeats itself, that perception of threat is going to be perceived at a
    much higher register.

[81]

Priming
    leads to magnification where the level of severity, the level of threat of a
    given situation may be greater than, again, on sober reflection and 20/20
    hindsight may be judged to be the case.

[82]

In
    cross-examination, Dr. Miller agreed that it is potentially possible that
    some of the psychological phenomena associated with the stress response,
    including priming and magnification, may not occur in a critical incident
    stress situation.

[83]

The
    appellant suggests that, in cross-examination, Dr. Miller agreed that the
    stress response would have diminished by the time of the second volley, as the
    threat Mr. Yatim posed recededbut was unable to qualify how responsive that
    recession would be to surrounding circumstances. We do not read Dr. Millers
    evidence this way. Responding to the hypothetical scenario based on the facts
    of this case put to him in evidence, and addressing the situation after the
    first volley, Dr. Miller said: This is going to put any normal system on even
    higher alert because now the dangerousness of the threat has become
    unpredictable. This evidence is consistent with Dr. Millers more general
    evidence about priming and magnification. It was never suggested to the
    jury that Dr. Miller testified that the appellants stress response would have
    abated by the time of the second volley.

[84]

Dr.
    Miller also testified that the stress inoculation training described by
    Deputy Chief Federico is limited and incomplete. The trial judge summarized
    this aspect of Dr. Millers evidence in his charge:

He testified that stress inoculation in which officers are
    taught to prepare and deal with stress in different scenarios is helpful but
    limited in that not every scenario can be anticipated, and what is lacking is
    that officers are not taught coping skills to deal with stress itself.

[85]

By
    the end of the trial, there was evidence before the jury that police officers
    in use-of-force encounters experience stress on both a physiological and
    psychological level. According to Deputy Chief Federico, stress inoculation
    helps to mitigate these effects. According to Dr. Miller, the training of TPS
    officers is inadequate. Apart from tunnel vision, priming, and magnification,
    there was no evidence before the jury that a use-of-force encounter could cause
    a police officer to hallucinate  to perceive something that did not actually
    happen in the physical world (
i.e.
, that Mr. Yatim was rising from the
    floor of the streetcar before the second volley). The appellants evidence
    stood alone on this critical issue. The proposed fresh evidence lends no
    assistance to his claim.

(2)

The proposed fresh evidence

[86]

The
    appellant relies on a 9-page report prepared by Dr. Andersen, and an 8-page
    report by Dr. Lovallo. Both are well-qualified and experienced psychologists.
    However, as explained below, the content of their reports that could have any
    impact on the issues on appeal is brief, and ultimately unhelpful.

[87]

The
    appellant relies most heavily on Dr. Andersens report. Dr. Andersen was asked
    to provide a literature review concerning scientific studies and reports that
    deal with the question of behavioural responses to stressful situations. The
    report also summarizes her research findings from a 2014 study conducted on six
    Emergency Task Force (ETF) officers of the TPS, over the course of 16 days. Dr.
    Andersens research findings have not been published nor, as far as can be
    determined, subjected to peer review.

[88]

The
    2014 study has two components. The first involved observing officers in
    training scenarios. Officers wore heart monitors. The research team was allowed
    to collect cortisol samples through saliva before and after staged events. The
    second component of the study involved measuring the officers heart rates
    while they were on the road, and then correlating those readings with detailed
    activity logs that the officers kept.

[89]

Dr.
    Andersen summarized her findings as follows:

ETF officers in our study demonstrated significant stress
    arousal, both cardiovascular and cortisol during training exercises. We were
    also able to assess cardiovascular stress arousal during active duty real
    life encounters. We assessed 48 potential Use of Force encounters [both in
    training and active duty] with ETF officers. Over all the encounters, stress
    arousal duration lasted, at minimum 5 minutes, and on average 30 minutes.

[90]

Dr.
    Andersen discussed her findings in more detail. She observed that stress
    arousal lasted longer during active duty encounters when compared with
    encounters in a training context. The report offers the following conclusion:

It should be noted that the results of our study were
    surprising given the fact that the participants were highly trained tactical
    team members. Training opportunities were held continuously during the year and
    officers were exposed to a wide variety of training tools and types of
    training.
Based on this data, we hypothesize that front-line officers with
    less training would display even greater stress arousal and duration of arousal
    given less frequent and varied training opportunities and experience.
[Emphasis
    added.]

[91]

The
    appellant attempts to bolster Dr. Andersens findings with Dr. Lovallos
    report. He, too, provides a review of the literature concerning the
    physiological dimensions of the stress response, dating back to the 1930s.

[92]

Dr.
    Lovallos report devotes roughly a page to Dr. Andersens 2014 study. He offers
    the following brief appraisal of her work:

Dr. Andersens measurement of physiological arousal, using
    continuous heart rate monitoring, in the study of police officers under
    training in the field would be considered the most practical and useful measure
    of emotional arousal for a study in active persons such as police.

The measurement methods Dr. Andersen has used in her studies in
    the training setting and in the field, are in line with current research
    standards and are appropriate for the settings and behaviour demands in
    question.

[93]

It
    is not clear why Dr. Lovallos report was made part of this fresh evidence
    application. Perhaps its limited appraisal is intended to compensate for the
    fact that Dr. Andersens study has not been peer reviewed. Nevertheless,
    neither report refers to Dr. Millers trial testimony. His conclusions are not
    contradicted. Neither Dr. Andersen nor Dr. Lovallo address perceptual or
    cognitive distortions. Indeed, the scope of Dr. Andersens research is
    considerably narrower than the scope of Dr. Millers evidence; her findings are
    restricted to two physiological stress measures (heart rate and cortisol
    secretion).

(3)

Analysis

(i)

Leave is not required

[94]

As
    noted above, due to the timing of the fresh evidence application, the Crown
    took the position that the appellant should be required to obtain leave to
    pursue the application. The panel ultimately decided to entertain the
    application, which has been considered in writing. The Crown now takes the
    position that, irrespective of the timing of a fresh evidence application,
    leave is always required. We disagree. There is no requirement that a party to
    a criminal proceeding first obtain leave before pursuing a fresh evidence
    application.

[95]

The
    power to admit fresh evidence is grounded in the general powers of a court of
    appeal, found in s. 683 of the
Criminal Code
. Section 683(1)(d)
    provides:

683(1) For the purposes of an appeal under this Part, the court
    of appeal may, where it considers it in the interests of justice,



(d) receive the evidence, if tendered, of any witness,
    including the appellant, who is a competent but not compellable witness

An intermediate step requiring leave to bring a fresh
    evidence application, whether brought by the Crown or the defence, is not
    reflected in the language of s. 683(1)(d). Indeed, none of the powers in s.
    683(1) is qualified by a leave requirement; instead, each is conditioned by the
    interests of justice.

[96]

The
    omission of a leave requirement in the language of s. 683(1)(d) is telling.
    There are other provisions in this Part of the
Criminal Code
(Part XXI
     Appeals  Indictable Offences) where leave is required. See, for example, ss.
    675(a)(ii), (iii), and (b) (right of appeal of person convicted); and s.
    676(1)(d) (right of Attorney General to appeal). Moreover, in Part XXVII 
    Summary Convictions, s. 839(1) provides an appeal to this court, but only with
    leave (of a single judge or a panel of the court).

[97]

The
    Crown argues that because fresh evidence applications will generally relate to
    appeals launched in accordance with s. 675(1)(a)(iii), which require leave, so
    too must a fresh evidence application. While section 675 addresses generally
    the rights of appeal of a person convicted, s. 683 explicitly addresses the
    powers of the court of appeal. Section 675 cannot be read in a manner that
    overrides the specific powers granted under s. 683.

[98]

The
    Crown also relies on
R. v. Romain
, 2017 ONCA 519, 351 C.C.C. (3d) 87,
    in which this court refused to hear a fresh evidence application brought on the
    eve of the appeal. The court determined that was not in the interests of
    justice to consider the application on its merits for the following reasons,
    at para. 21:

There is a strong argument to be made that the "interests
    of justice" would not be served by receiving the appellant's affidavit on
    the eve of the appeal, when no explanation is offered for the total failure to
    comply with the rules and conventions of this court governing fresh evidence
    applications in criminal appeals. The negative impact on the proper
    administration of justice flowing from receiving an affidavit at this stage of
    the proceeding is properly considered in determining what the "interests
    of justice" require in a given case. The timing of the filing of the
    appellant's affidavit, had there been any merit to this argument, may well have
    forced the court to bifurcate the appeal and further delay the resolution of
    what is already a five-year old appeal. We would think the court would be
    reluctant to go down that path without some good explanation for the late
    filing of the material and some demonstration of real potential merit in the
    fresh evidence application.

[99]

The
    Crown argues that the approach in
Romain
is consistent with the
    practice of the Court of Appeal of Quebec, where a separately constituted panel
    may consider whether there is sufficient merit in a fresh evidence application
    to permit the matter to be heard on the appeal proper: see
R. c. Onwualu
,
    2015 QCCA 1515, 126 W.C.B. (2d) 126, at paras. 19-22.
[4]
To a certain extent, this practice is governed by s. 54 of the
Rules of the
    Court of Appeal of Quebec in Criminal Matters
, SI/2006-142. Section 54(3)
    furnishes that court with the power to authorize or refuse the taking of fresh
    evidence and determine, if applicable, the terms by which relevant documents
    will be exchanged and cross-examinations undertaken. After evidence has been
    taken, the court hearing the appeal determines the admissibility of the
    evidence. There is no similar provision in this courts
Criminal Appeal
    Rules
, SI/93-169.
[5]


[100]

The Crowns
    reliance on
Romain
is misplaced. The issue that arose in that case was
    decided by a straightforward application of the interests of justice
    threshold. Neither the
Criminal Code
nor the Rules of this court
    establish a separate leave requirement. Equally, there is no right to have
    fresh evidence considered on its merits. The interests of justice in s. 683
    is the broad authority to determine both how the application will proceed and
    the ultimate question of admissibility. This approach has worked well and there
    is no need to create a new norm.

[101]

In conclusion,
    there is no separate leave requirement for fresh evidence applications in
    criminal matters.

(ii)

The
    merits

[102]

The governing
    approach to the admission of fresh evidence is found in
Palmer v. The Queen
,
    [1980] 1 S.C.R. 759, at p. 766, dealing with an earlier version of this section
    (s. 610). After reviewing a number of appellate court decisions bearing on this
    issue, McIntyre J. articulated the following principles, at p. 775:

(1) The evidence should generally not be admitted if, by due
    diligence, it could have been adduced at trial provided that this general
    principle will not be applied as strictly in a criminal case as in civil cases

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

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

(4) 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.

This court has applied these principles on countless
    occasions.

[103]

Counsel are
    diametrically opposed in their positions on the applicability of the
Palmer
factors. The appellant contends that all of the pre-conditions for
    admissibility are met. He contends that the evidence reveals that the
    prevalence of the stress response is much greater and of longer duration than
    the evidence suggested at trial. Moreover, the evidence fills the gap that
    [Dr.] Millers evidence left and the Crown exploited. In the appellants view,
    the proposed fresh evidence shows that stress inoculation does little to
    counteract the effects of the stress response and shows that the stress
    response endures for a significantly longer period of time than the appellants
    brief interaction with Mr. Yatim. According to the appellant, had this evidence
    been admitted at trial, the jury would have been more likely to have accepted
    his evidence that he was honestly mistaken in his claim that Mr. Yatim was in
    the process of getting up just before the second volley.

[104]

The Crown argues
    that none of the criteria for admission have been met. Allowing for the fact
    that Dr. Andersens study of ETF officers may qualify as being fresh, it adds
    nothing to the trial evidence about perceptual distortions caused by stress.
    The Crown further contends that Dr. Andersens findings about the duration of
    the physiological stress response is inconsequential because there was no real
    issue at trial that, after the appellant fired the first volley at Mr. Yatim,
    he would still have experienced the same kind of stress response 5.5 seconds
    later as he fired the second volley. The Crown relies on Dr. Millers evidence
    concerning priming and magnification in support of this proposition.

[105]

In our view, the
    appellant has established that Dr. Andersens study of ETF officers is fresh
    within the meaning of
Palmer
. The study was not available to counsel
    at the time of the trial. Counsel cannot be faulted for not adducing this
    evidence at the time. However, this applies only to the ETF study. Dr.
    Andersens literature review is not fresh; it merely recounts a
    well-established body of academic study, dating back many years. Dr. Miller
    alluded to this body of literature during his testimony. Consequently, all
    aspects of Dr. Andersens and Dr. Lovallos reports that are unrelated to the
    2014 ETF study are not fresh.

[106]

In our view,
    this application falters on the remaining
Palmer
factors, especially
    on the question of whether the proposed evidence could reasonably, when taken
    with the other evidence adduced at trial, be expected to have affected the
    result. In our view, it could not.

[107]

For starters,
    the Crown points to shortcomings in Dr. Andersens study that it says should
    prevent its admission as expert evidence. These weaknesses include the small
    sample size of six officers, the limited duration of the study, the incomplete
    descriptions of the officers activities, and the limited physiological data
    from the active duty situations. The Crown also relies upon the fact that the
    study remains unpublished and apparently has not been subjected to peer review.
    Lastly, the report does not evaluate Dr. Millers testimony, nor does it
    suggest that he was wrong.

[108]

The appellant
    contends that, because the Crown declined to cross-examine Dr. Andersen (or Dr.
    Lovallo), it is prevented from challenging the reliability of this evidence. We
    disagree. Sometimes shortcomings in expert reports can only be exposed through
    cross-examination; sometimes they are self-evident. Nevertheless, it is not
    necessary to our ultimate conclusion that we resolve this issue definitively.
    We simply note that, just as the trial judge expressed concerns about the
    value of Dr. Millers evidence at trial, certain aspects of Dr. Andersens ETF
    study reveal vulnerability at the admissibility stage. This is not meant to be
    a comment on Dr. Andersens competence or stature as an academic or researcher;
    it is an observation of this particular study.

[109]

Even assuming
    that the report would be admissible as expert opinion evidence, the fresh
    evidence application should still fail. In general, fresh evidence on appeal is
    not meant to provide an opportunity to tender concurring expert opinions on
    issues canvassed at trial, nor is it a platform for offering expert reports to
    repair defects in expert evidence adduced at trial. As this court said in
R.
    v. M. (P.S.)
(1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 411-412, fresh
    evidence will not be admitted merely to add a third voice to the issues
    canvassed at trial. See also
R. v. Smith
(2001), 161 C.C.C. (3d) 1
    (Ont. C.A.), at para. 71, leave to appeal refused: [2002] S.C.C.A. No. 156; and
R. v. Phillion
, 2009 ONCA 202, 241 C.C.C. (3d) 193, at para. 233. Dr.
    Andersens report purports to add a third voice to a relatively uncontentious
    issue at trial (
i.e.
, the physiological responses to use-of-force
    encounters), but it fails to address the critical issue at trial (
i.e.
,
    whether the appellant honestly believed that Mr. Yatim was in the process of
    getting up just before the second volley was fired).

[110]

The evidence at
    trial clearly established that use-of-force scenarios triggered the stress
    response in police officers. This point was clearly made in the evidence of
    Deputy Chief Federico and Dr. Miller, as well as the evidence of the
    appellants partner, Constable Fleckeisen. Dr. Miller testified about the
    physiological responses to stress, including cardiovascular activity and
    cortisol secretion. Dr. Andersens recent study confirms this.

[111]

The appellant
    places a great deal of significance on the duration of the stress response
    revealed in Dr. Andersens study. He suggests that this contradicts the
    evidence at trial. We disagree. It was not seriously disputed at trial that the
    appellant continued to experience significant stress just before the second
    volley. This was at the heart of Dr. Millers priming and magnification
    evidence. Indeed, Dr. Andersens report falls significantly short of the
    territory covered in Dr. Millers testimony. While Dr. Miller attempted to
    address the behavioural and perceptual aspects of the stress response, Dr.
    Andersens study is confined to two physiological responses during training
    sessions (cardiac and cortisol), and only one during real-life encounters
    (cardiac).

[112]

The appellant
    argues that the fresh evidence is significant because it undermines the
    evidence of Deputy Chief Federico on stress inoculation by proving that
    officers who have received the benefit of more training than the average TPS
    officer (including the appellant) still experience high levels of stress in
    use-of-force encounters. However, the efficacy of stress inoculation was
    thoroughly canvassed at trial. Dr. Miller testified that this training has
    limits because it does not reduce the physiological stress response. Dr.
    Andersens evidence adds little, if anything, to the debate. Again, it is
    restricted to physiological responses; it does not purport to address potential
    perceptual or cognitive distortions.

[113]

Lastly, and most
    importantly, Dr. Andersens report does not address, nor was her research
    designed to address, the question of whether officers in use-of-force
    situations experience perceptual distortions of the type reported by the
    appellant. Without that link, her evidence could not reasonably be expected to
    affect the result at trial. The appellant wishes to draw the conclusion from
    Dr. Andersens report that the physiological responses of an officer in
    use-of-force scenarios are co-extensive with that officers cognitive or
    psychological response. Nothing beyond assumption supports this conclusion.

[114]

The application to adduce fresh
    evidence is dismissed.

G.

the appeal against sentence

[115]

Upon the
    appellants conviction for attempted murder with a firearm, the Crown sought a
    sentence of eight to ten years imprisonment. The appellant wanted a
    conditional sentence of imprisonment (
Criminal Code
, s. 741.2).
    However, because the appellant faced a mandatory minimum sentence of five years
    imprisonment under s. 239(1)(a)(i) of the
Criminal Code
for committing
    attempted murder while using a restricted or prohibited firearm, a conditional
    sentence was not available. Consequently, the appellant challenged the
    constitutional validity of both this provision, and the related four-year
    mandatory minimum found under s. 239(1)(a.1) for attempted murder with any
    other type of firearm, based on alleged violations of ss. 7 and 12 of the
Charter
.
    In thorough reasons, the trial judge rejected the appellants challenge: 2016
    ONSC 4896, 133 W.C.B. (2d) 177 (the Constitutional Ruling). In separate and
    equally thorough reasons, the trial judge sentenced the appellant to six years
    imprisonment: 2016 ONSC 4850, 132 W.C.B. (2d) 91 (Reasons for Sentence). The
    appellant challenges both decisions.

[116]

We would dismiss
    both aspects of the sentence appeal. The trial judge made no error in
    dismissing the appellants constitutional claims. The outcome of the s. 12
    claim is all but pre-determined by the decision in
R. v. Ferguson
,
    2008 SCC 6, [2008] 1 S.C.R. 96, a case in which a police officer killed a
    prisoner in his custody. The Supreme Court unanimously upheld the mandatory
    minimum sentence of four years imprisonment for manslaughter while using a
    firearm in the commission of an offence (s. 236(a) of the
Criminal Code
).
    The appellants overbreadth argument under s. 7 of the
Charter
essentially boils down to a claim that the mandatory minimum sentence was never
    intended to apply to police officers when acting in the line of duty. The trial
    judge rejected this claim, as do we.

[117]

Lastly, we are
    satisfied that six years imprisonment was a fit sentence. There is no basis
    upon which to interfere.

(1)

The constitutionality of the
    mandatory minimum sentence

[118]

Attempted murder
    under s. 239 of the
Criminal Code
is one of the most serious offences
    in Canadian law. It has always been punishable by a maximum sentence of life
    imprisonment: see Gary P. Rodrigues,
Crankshaws Criminal Code of Canada
,
    loose-leaf (2017, Rel. 10-2) (Toronto: Carswell, 1993), vol. 2 at 8-192 to
    8-192.1.

[119]

In 1995,
    Parliament passed
An Act respecting firearms and other weapons
, S.C.
    1995, c. 39 (the
Firearms Act
), creating a number of mandatory
    minimum sentences.
[6]
Section 143 of that act created a mandatory minimum sentence of four years
    imprisonment for committing manslaughter while using a firearm in the
    commission of the offence. In 2008, Parliament passed the
Tackling Violent
    Crime Act
, S.C. 2008, c. 6. Under s. 16 of that act, s. 239 of the
Criminal
    Code
was amended again to create multiple mandatory minimum sentences for
    attempted murder. The section currently reads:

239. (1) Every person who attempts by any means to commit
    murder is guilty of an indictable offence and liable

(
a
)
if a restricted firearm or prohibited firearm
    is used in the commission of the offence
or if any firearm is used in the
    commission of the offence and the offence is committed for the benefit of, at
    the direction of, or in association with, a criminal organization, to
    imprisonment for life and to a minimum punishment of imprisonment for a term of

(i)
in the case of a first
    offence, five years
, and

(ii) in the case of a second or
    subsequent offence, seven years;

(
a.1
)
in any other case
    where a firearm is used in the commission of the offence, to imprisonment for
    life and to a minimum punishment of imprisonment for a term of four years
;
    and

(
b
) in any other case, to
    imprisonment for life. [Emphasis added.]

[120]

This appeal is
    only concerned with the validity of ss. 239(1)(a)(i) (attempted murder
    involving the use of a prohibited or restricted firearm) and (a.1) (attempted
    murder involving the use of any other firearm). The other mandatory minimum
    sentences under ss. 239(1)(a)(i) (attempted murder connected with the
    activities of a criminal organization) and (1)(a)(ii) (second or subsequent offences
    under (1)(a)) are not at issue in this appeal.

[121]

The appellant
    argues that the punishments under ss. 239(1)(a)(i) and (a.1) are cruel and
    unusual, contrary to s. 12 of the
Charter
. However, he does not press
    the point strongly, especially in light of the Supreme Courts decision in
Ferguson
.
    Nevertheless, he invites this court to distinguish this case and find ss.
    239(1)(a)(i) and (a.1) unconstitutional. The appellant also argues that these
    provisions are overbroad and violate s. 7 of the
Charter
.

(i)

Cruel and unusual punishment (s. 12)

[122]

The
    principles that animate s. 12 of the
Charter
are not in dispute. Given
    the sensible approach that counsel for the appellant has taken to this aspect
    of the constitutional claim, these principles can be reviewed quite succinctly.

[123]

A
    punishment is cruel and unusual if it is grossly disproportionate to a fit
    punishment in the circumstances. In this case, the question is whether ss.
    239(1)(a)(i) and (a.1) mandate sentences that are grossly disproportionate to
    the facts of the case before the court, or the facts of cases that may arise in
    the laws reasonable foreseeable applications:
R. v. Lloyd
, 2016 SCC
    13, [2016] 1 S.C.R. 130, at para. 22. See also
R. v. Nur
, 2015 SCC 15,
    [2015] 1 S.C.R. 773, at paras. 58, 68, and 72.

[124]

A court must
    determine what a fit sentence is for the offence, taking into account the
    relevant aggravating and mitigating factors of the case before the court or
    reasonably hypothetical cases. Then the court must ask whether the impugned
    provision requires that a judge impose a sentence that is grossly
    disproportionate to what is fit and appropriate in the circumstances. If the
    answer to the second question is yes, the provision will violate s. 12: see
Nur
,
    at para. 46;
Lloyd
, at para. 23. The Supreme Court has set a high
    bar for finding that a sentencing provision violates s. 12:
Lloyd
, at
    para. 24.

[125]

In addition to
    relying on his own circumstances, the appellant posits some hypothetical
    scenarios in an attempt to expose the constitutional invalidity of ss.
    239(1)(a)(i) and (a.1). In the s. 12 framework, such scenarios must be
    reasonable. This does not include far-fetched and marginally imaginable
    cases: see
R. v. Goltz
, [1991] 3 S.C.R. 485, at p. 506;
R. v.
    Morrisey
, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 30;
Nur
, at
    paras. 54-57. This strict approach excludes using personal factors to
    construct the most innocent and sympathetic case imaginable:
Nur
, at
    para. 75.

[126]

The breadth of
    an offence, in terms of the conduct that it criminalizes, is crucial to the s.
    12 inquiry. In
Lloyd
, at para. 24, Chief Justice McLachlin wrote for
    the majority: The wider the range of conduct and circumstances captured by the
    mandatory minimum, the more likely it is that the mandatory minimum will apply
    to offenders for whom the sentence would be grossly disproportionate. This
    legislative feature was critical to the declaration of invalidity of s.
    5(3)(a)(i)(D) of the
Controlled Drugs and Substances Act
, S.C. 1996,
    c. 19 in
Lloyd
(see para. 27) and s. 95 of the
Criminal Code
in
Nur
. In
Nur
, the majority found that s. 95 casts its net
    over a wide range of potential conduct (para. 82). It covers cases involving a
    high level of moral blameworthiness, as well as more benign applications,
    involving little or no danger to the public. The majority agreed with this
    courts conclusion that, when applied to these low-level scenarios, the
    mandatory minimum sentence is grossly disproportionate.

[127]

Returning to
Lloyd
,
    McLachlin C.J. made the following observations about the breadth of offence
    definitions, at para. 35:

mandatory minimum sentences that, as here, apply to offences
    that can be committed in various ways, under a broad array of circumstances and
    by a wide range of people are vulnerable to constitutional challenge. This is
    because such laws will almost inevitably include an acceptable reasonable
    hypothetical for which the mandatory minimum will be found unconstitutional.
If
    Parliament hopes to sustain mandatory minimum penalties for offences that cast
    a wide net, it should consider narrowing their reach so that they only catch
    offenders that merit the mandatory minimum sentences.
[Emphasis added.]

[128]

Attempted murder
    is very different from the crimes considered in
Nur
and
Lloyd
.
    Sections 239(1)(a)(i) and (a.1) do not apply to a wide range of potential
    conduct. Every case caught by these sections involves an individual who
    intends to end the life of another by using a firearm. There could hardly be a
    more focused and lethal combination for the purposes of s. 12 of the
Charter
.

[129]

The moral
    blameworthiness of attempted murder is always very high. To be convicted of
    this offence, an accused must have a specific intention to kill the victim:
R.
    v. Ancio
, [1984] 1 S.C.R. 225, at pp. 248-249. In
R v. Logan
,
    [1990] 2 S.C.R. 731, the Supreme Court considered the fault requirement for
    attempted murder in the context of party liability under s. 21(2) of the
Criminal
    Code
. Chief Justice Lamer characterized attempted murder in the following
    way, at p. 743:

Quite simply, an attempted murderer is, if caught and
    convicted, a "lucky murderer."



The stigma associated with a conviction for attempted murder is
    the same as it is for murder. Such a conviction reveals that although no death
    ensued from the actions of the accused, the intent to kill was still present in
    his or her mind. The attempted murderer is no less a killer than a murderer: he
    may be lucky -- the ambulance arrived early, or some other fortuitous
    circumstance -- but he still has the same killer instinct.
Secondly, while a
    conviction for attempted murder does not automatically result in a life
    sentence, the offence is punishable by life and the usual penalty is very
    severe
. [Emphasis added.]

[130]

A similar view
    is found in
R v. McArthur
(2004), 182 C.C.C. (3d) 230 (Ont. C.A.), at
    paras. 47-48:

Under our law, a person can only be convicted of attempted
    murder if he or she intended to kill.
The moral culpability of the attempted
    murderer is at least equal to that of a murderer.
He or she avoids a murder
    conviction and the automatic sentence of life imprisonment not because of any
    mitigating factor, but because through good fortune, the victim was not killed.

A conviction for attempted murder will almost inevitably
    result in a lengthy penitentiary term
. [Emphasis added.]

[131]

The conclusion
    expressed in the last line of both of these passages is borne out in the trial
    judges review of the sentencing jurisprudence for attempted murder. In his
    Reasons for Sentence, at para. 72, the trial judge referred to
R. v. Tan
,
    2008 ONCA 574, 268 O.A.C. 385, as establishing a range of six years to life
    imprisonment. In
Tan
, this court upheld a sentence of 15 years for
    attempted murder. In defining the range of sentence, Laskin J.A. said, at para.
    35:

The sentences for attempted murder imposed or upheld by this
    court have varied widely. At the lower end of the range is
R. v. Campbell
,
    [2003] O.J. No. 1352 (C.A.), where this court upheld the sentence of nine
    years' imprisonment. Reflecting an even lower sentence is
R. v. Boucher
(2004), 186 C.C.C. (3d) 479 (Ont. C.A.), where, on a Crown appeal of a sentence
    of two years less a day (in addition to the 28 months the accused had spent in
    pre-trial custody), Simmons J.A. said that the appropriate sentence was six
    years' imprisonment less credit for time served.

[132]

Tan
has
    been followed in other cases. In
R. v. Chevers
, 2011 ONCA 569, 282
    O.A.C. 388, this court upheld a sentence of 15 years imprisonment, stating:
    double digit prison sentences for attempted murder have been imposed in cases
    of planned executions involving the use of firearms (para. 8). See also
R.
    v. Stubbs
, 2013 ONCA 514, 300 C.C.C. (3d) 181, in which a sentence of 16
    years imprisonment was upheld in a case of attempted murder in which a firearm
    was used.
[7]

[133]

The appellant
    argues that, as a police officer acting in the line of duty, confronted with a
    volatile situation that demanded that he make split-second decisions, his
    circumstances are special, and take him out of the typical range for attempted
    murder. We disagree. This leads us to the Supreme Courts decision in
Ferguson
.

[134]

Ferguson was a
    police officer who became involved in an altercation with the man he arrested.
    When Ferguson placed his prisoner in a holding cell, a scuffle ensued. The
    victim was shot in the stomach and then in the head. Ferguson was charged with
    second degree murder but convicted of manslaughter.

[135]

Ferguson faced a
    mandatory minimum sentence of four years imprisonment for committing
    manslaughter while using a firearm pursuant to s. 236(a) of the
Criminal
    Code
. The trial judge refused to impose this sentence and sentenced
    Ferguson to a conditional sentence of two years less a day. The Alberta Court
    of Appeal reversed the trial judge and imposed the mandatory minimum sentence.
    The Supreme Court dismissed the appeal, holding that s. 236(a) does not
    infringe s. 12 of the
Charter
. Given the obvious parallels with this
    case, the Supreme Courts analysis in
Ferguson
is important.

[136]

At the outset of
    her analysis, McLachlin C.J. relied on the Supreme Courts previous decision in
Morrisey
, upholding the constitutional validity of s. 220(a) of the
Criminal
    Code
, which provides for a four-year mandatory minimum sentence for
    criminal negligence causing death while using a firearm. In a sense, the s. 12
    issue in
Ferguson
was pre-determined by the result in
Morrisey
;
Morrisey
and
Ferguson
foreshadow the outcome on this appeal.

[137]

In
Ferguson
,
    the Supreme Court agreed with the trial judges findings that the jury had (i)
    rejected the appellants claim of self-defence, and (ii) at the very least,
    entertained a reasonable doubt whether the appellant possessed one of the
    intents for murder in s. 229(a) of the
Criminal Code
(see para. 20).
    After correcting fact-finding errors made by the trial judge, the Court
    considered whether the mandatory minimum sentence in s. 236(a) was reasonably
    capable of generating grossly disproportionate sentences. Writing for a
    unanimous Court, McLachlin C.J. held, at para. 28:

When the erroneous findings of the trial judge are set aside,
    no basis remains for concluding that the four-year mandatory minimum sentence
    prescribed by Parliament constitutes cruel and unusual punishment on the facts
    of this case.
The trial judge recognized as aggravating factors that
    Constable Ferguson was well trained in the use of firearms and stood in a
    position of trust with respect to Mr. Varley, and correctly noted that the
    standard of care was higher than would be expected of a normal citizen.
By
    way of mitigation, the trial judge noted that Constable Ferguson's actions were
    not planned, that Mr. Varley initiated the altercation in the cell, that
    Constable Ferguson had little time to consider his response, and that his
    instincts and training played a role in the shooting.
The mitigating factors
    are insufficient to make a four-year sentence grossly disproportionate. The
    absence of planning, the apparent fact that Mr. Varley initiated the
    altercation in the cell, and the fact that Constable Ferguson did not have much
    time to consider his response, are more than offset by the position of trust
    Constable Ferguson held and by the fact that he had been trained to respond
    appropriately to the common situation of resistance by a detained person.
I
    agree with the Court of Appeal that the mitigating factors do not reduce
    Constable Ferguson's moral culpability to the extent that the mandatory minimum
    sentence is grossly disproportionate in his case. [Emphasis added.]

[138]

Some of the
    features of the offence in
Ferguson
are present in this case,
    including the fact that the appellant did not plan the killing, that Mr. Yatim
    initiated the confrontation, and that the appellant did not have much time to
    consider his response.

[139]

The appellant
    faces a virtual wall of adverse jurisprudence.
Morrisey
held that s.
    220(a) does not infringe s. 12.
Ferguson
held that s. 236(a) does not
    infringe s. 12. To this list, we would add
R. v. McDonald
(1998), 40
    O.R. (3d) 641 (C.A.), in which this court upheld the constitutional validity of
    s. 344(a) (committing robbery while using a firearm) under s. 12 of the
Charter
.

[140]

Against this
    jurisprudential backdrop, the appellant has failed to demonstrate that either
    ss. 239(1)(a)(i) or (a.1) of the
Criminal Code
, as applied to his
    circumstances, violate s. 12 of the
Charter
. The high level of moral
    culpability inherent in the crime of attempted murder easily surpasses that
    which attaches to manslaughter, criminal negligence causing death, and robbery.
    When the appellants breach of trust is factored into the equation, as it was
    in
Ferguson
, the result is inexorable  there is no infringement of s.
    12 of the
Charter
.

[141]

The appellant
    also points to some hypothetical scenarios in an attempt to undermine the
    validity of ss. 239(1)(a)(i) and (a.1). The appellant advanced seven scenarios
    before the trial judge, all of which were rejected: Constitutional Ruling, at
    paras. 79-121. Only two survive on appeal. These can be addressed quite
    briefly.

[142]

The first
    scenario involves a homeowner who is confronted by an armed intruder. The
    homeowner manages to disarm the intruder and ends up shooting at him five or
    six times, in fear, missing with each shot. The appellant contends that, if the
    trier of fact rejects the objective reasonableness of the decision to shoot the
    intruder after justifiably disarming him, the homeowner would be unfairly
    subject to one of the mandatory minimum sentences in ss. 239(1)(a)(i) and
    (a.1), depending on the type of gun used.

[143]

The second
    scenario involves a woman who has been abused by her intimate partner.
    Misperceiving that another attack is about to commence, she shoots her abuser
    in what she believes to be lawful self-defence, with the abusers own gun, but
    the shot is not fatal. The appellant argues that, should her claim of
    self-defence be rejected, she would be liable to a mandatory sentence of four
    or five years imprisonment. The appellant contrasts this to a situation in
    which the same woman uses a knife, instead of gun, and actually kills her
    abusive partner. If convicted of manslaughter in those circumstances, the woman
    would not be subject to a mandatory minimum sentence and would likely receive a
    sentence of three years imprisonment.

[144]

Along with the
    trial judge, we are not persuaded that the imposition of one of the mandatory
    minimum sentences in ss. 239(1)(a)(i) and (a.1) would produce grossly
    disproportionate sentences in either scenario. In both instances, the appellant
    underplays the two critical components that are at the heart of this case  an
    unjustified specific intention to kill, coupled with the use of a firearm.

[145]

The appellants
    armed intruder scenario was framed somewhat differently before the trial judge.
    In that rendition, the intruder is shot and laying on the ground while the
    accused awaits the arrival of the police. The offender mistakenly, but
    unreasonably, believes that the intruder is trying to get up, and accordingly
    shoots him again, intending to kill. Pitched in this fashion, the scenario is
    remarkably similar to that of the appellant. It is no surprise that the trial
    judge did not find this scenario to be compelling: see Constitutional Ruling,
    at paras. 95-96.

[146]

The revised
    version on appeal is no more compelling. In fact, it is less so. Merely
    asserting fear, and not misperceiving that the intruder is attempting to
    re-engage, the homeowner shoots to kill. On either version, a sentence of four
    or five years imprisonment would still be supported by the range identified in
Tan
.

[147]

The same may be
    said of the intimate partner scenario. The appellant strains to make the
    hypothetical more compelling by adding the detail that the spouse uses her
    abusers gun. Moreover, this scenario with which the appellant contrasts this
    hypothetical is roughly constructed on the fact scenario in
R. v. Craig
,
    2011 ONCA 142, 269 C.C.C. (3d) 61, in which the accused was convicted of
    manslaughter, not attempted murder. Ultimately, this court found that a
    sentence of three years imprisonment was appropriate in light of the accuseds
    serious mental illness. Additionally, the accused used a knife, not a gun, and
    lacked the intent to kill. Her sentence was governed by the lower range of
    sentence for manslaughter, not for attempted murder. This scenario does not
    suggest that the mandatory minimum sentences in ss. 239(1)(a)(i) and (a.1)
    infringe s. 12.

[148]

The appellant
    has failed to establish a breach under s. 12 of the
Charter
. It is unnecessary
    to consider s. 1.

(ii)

Fundamental
    justice and overbreadth (s. 7)

[149]

The appellant
    argues that ss. 239(1)(a)(i) and (a.1) should be declared inoperative because
    they violate s. 7 of the
Charter
on the basis of overbreadth. The
    trial judge acknowledged, at para. 131 of the Constitutional Ruling, that it
    was open to the appellant to advance this argument. We agree. In
Nur
,
    McLachlin C.J. said, at para. 110: I do not rule out the possibility that
    despite the detailed sentencing jurisprudence that has developed under s. 12 of
    the
Charter
, situations may arise requiring recourse to s. 7 of the
Charter
.

[150]

However, resort
    to s. 7 in the sentencing context has its limits.

[151]

We do not take
    McLachlin C.J.s words as an invitation to re-evaluate a sentencing provision
    based on a watered-down or more accommodating version of the test developed
    under s. 12 of gross disproportionality. The appellant cannot elude the
    exacting requirements of that test by re-framing a proportionality argument as
    an issue to be considered under s. 7: see
R. v. Safarazadeh-Markhali
,
    2016 SCC 14, [2016] 1 S.C.R. 180, at para. 21;
Lloyd
, at paras. 40-44;
    and
R. v. Malmo-Levine
, 2003 SCC 74, [2003] 3 S.C.R. 571, at para.
    160. We make these observations because, as discussed below, just below the
    surface, part of the appellants overbreadth argument reveals seeds of a s. 12
    claim.

[152]

It is
    unnecessary to trace the development of overbreadth as a principle of
    fundamental justice under s. 7 of the
Charter
. It is sufficient to
    start with
Canada (Attorney General) v. Bedford
, 2013 SCC 72, [2013] 3
    S.C.R. 1101, in which the Supreme Court described overbreadth as follows, at
    paras. 112-113:

Overbreadth deals with a law that is so broad in scope that it
    includes
some
conduct that bears no relation to its purpose. In this
    sense, the law is arbitrary
in part
. At its core, overbreadth
    addresses the situation where there is no rational connection between the
    purposes of the law and
some
, but not all, of its impacts

Overbreadth allows courts to recognize that the law is rational
    in some cases, but that it overreaches in its effect in others. Despite this
    recognition of the scope of the law as a whole, the focus remains on the
    individual and whether the effect on the individual is rationally connected to
    the laws purpose. For example, where a law is drawn broadly and targets some
    conduct that bears no relation to its purpose in order to make enforcement more
    practical, there is still no connection between the purpose of the law and its
    effect on the
specific individual
. [Emphasis in original.]

[153]

In
Safarazadeh-Markhali
,
    McLachlin C.J. reiterated, at para. 50: In other words, the law must not go
    further than reasonably necessary to achieve its legislative goals. See also
Carter
    v. Canada (Attorney General)
, 2015 SCC 5, [2015] 1 S.C.R. 331, at para.
    85;
R. v. Appulonappa
, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 71.

[154]

Moreover, the
    cases have created a high threshold for establishing an infringement of s. 7
    based on overbreadth. In
Bedford
, McLachlin C.J. said, at para. 119,
    [t]his standard is not easily met. A recent decision of a five-judge panel of
    this court underscored this threshold: see
R. v. Long
, 2018 ONCA 282,
    at para. 76.

[155]

The overbreadth
    inquiry proceeds in two steps. First, a court must assess the purpose of the
    impugned provision, in this case, the mandatory minimum sentences in ss.
    239(1)(a)(i) and (a.1). Second, it must be determined whether the mandatory
    minimum provisions deprive the appellant of his life, liberty or security of
    the person because in some cases, they do not further their intended purpose:
    see
Appulonappa
, at para. 27.

[156]

The respondent
    raises the preliminary issue that the appellant is not entitled to advance the
    overbreadth claim because he has not demonstrated a deprivation of liberty.
    This submission rests on the fact that the appellant was sentenced to a term of
    imprisonment that exceeded the mandatory minimum sentences in ss. 239(1)(a)(i)
    and (a.1). We reject this argument.

[157]

Under s. 12, the
    focus is not solely on the circumstances of the offender. In
Nur
, the
    majority held that excluding consideration of reasonably foreseeable
    hypothetical applications would run counter to settled authority of this Court
    and artificially constrain the inquiry into the laws constitutionality (para.
    49). The Supreme Court has consistently said that a challenge to a law does not
    require that the provision under attack contravene the rights of the offender
    before the court. This authority stretches back to
R. v. Big M Drug Mart
    Ltd.
, [1985] 1 S.C.R. 295, in which Dickson J., as he then was, said: no
    one can be convicted of an offence under an unconstitutional law and, [i]t is
    the nature of the law, not the status of the accused, that is in issue (pp.
    314-315). See also
Nur
, at para. 51;
Ferguson
, at para. 59.

[158]

This same
    approach, based on rule of law principles, applies to overbreadth claims under
    s. 7. In
Appulonappa
, McLachlin C.J., writing for a unanimous Court,
    cited
Nur
for this proposition, at para. 28:

The appellants argue that s. 117 is overbroad, not as it
    applies to the conduct alleged against them, but as it applies to other
    reasonably hypothetical situations. It is indeed established that a court may
    consider reasonable hypotheticals to determine whether a law is consistent
    with the
Charter
:

[159]

This
    definitively disposes of the question of the appellants standing to assert his
    overbreadth claim.

[160]

The appellant
    argues that the reach of ss. 239(1)(a)(i) and (a.1) extend well beyond their
    stated purpose. He argues that the sections were not meant to apply to
    situations involving police officers who use excessive force or to individuals
    who unreasonably exceed the scope of self-defence. Secondly, the appellant
    argues that, as drafted, the impugned mandatory minimum sentences could be
    applied to a situation in which a firearm is used as a blunt object with which
    to beat someone. According to the appellant, the sections were not intended to
    apply to using a firearm without discharging it.

[161]

The
    jurisprudence has emphasized that identifying the purpose of an impugned
    provision must be undertaken with precision: see
Safarzadeh-Markhali
,
    at paras. 24-29;
Long
, at para. 78. In
Appulonappa
, McLachlin
    C.J. said, at para. 33: As with statutory interpretation, determining
    legislative purpose requires us to consider statements of legislative purpose
    together with the words of the provision, the legislative context, and other
    relevant factors. And in
R. v. Moriarity
, 2015 SCC 55, [2015] 3
    S.C.R. 485, at para. 28, Cromwell J. held that a court must not articulate a
    laws purpose too broadly, nor too narrowly. He continued, at para. 32:

[C]ourts should be cautious to articulate the legislative
    objective in a way that is firmly anchored in the legislative text, considered
    in its full context, and to avoid statements of purpose that effectively
    predetermine the outcome of the overbreadth analysis without actually engaging
    in it.

[162]

The appellant
    submits that the original purpose for creating a mandatory minimum sentence for
    attempted murder with a firearm was to deter people from choosing to carry a
    firearm to carry out an unlawful purpose. He points to statements made in
    Parliament in relation to the first mandatory provisions created by the
Firearms
    Act
. In introducing the legislation, the Honourable Allan Rock, Minister
    of Justice and Attorney General of Canada at the time, stated the following
    concerning mandatory minimum sentences relating to firearms: Those who take up
    a firearm to threaten others, to rob or assault must know that by choosing to
    use a firearm they are making an important decision about a large part of the
    rest of their lives. The punishment must be certain and must be significant:
House
    of Commons Debates
, 35th Parl., 1st Sess., vol. 8 (16 February 1995), at
    p. 9706.

[163]

However, the
    Minister went further. In describing the legislations effect, he stated that
    it introduced tough measures to deal with the criminal misuse of firearms:
Debates
(16 February 1995), at p. 9707. The Supreme Court recognized this objective,
    and others, in
Reference re Firearms Act (Canada)
, 2000 SCC 31, [2000]
    1 S.C.R. 783, at para. 20. See also
R. v. Wust
, 2000 SCC 18, [2000] 1
    S.C.R. 455, at para. 32; and
Morrisey
, per the concurring reasons of
    McLachlin J., as she then was, and Arbour J., at para. 70.

[164]

More recently,
    with the enactment of the
Tackling Violent Crime Act
, statements were
    made in the House of Commons, and in background literature to the legislation,
    that the use of illegal firearms and gang activity was on the rise. The
    Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada at
    the time, told the House that the government wanted to ensure that any
    individuals who want to get involved with these serious firearms offences will
    have the opportunity to focus on the consequences of their actions:
House
    of Commons Debates
, 39th Parl., 2nd Sess., vol. 142 (11 February 2008), at
    p. 2864.

[165]

From this slim
    record, the appellant submits that the legislative history establishes that,
    through the enactment of the mandatory minimum sentences in ss. 239(1)(a)(i)
    and (a.1), Parliament intended to combat the choice to arm oneself for the
    purposes of setting out to commit a criminal offence. The appellant submits
    that police officers do not choose to arm themselves; they are required to
    carry firearms as part of their duties. Consequently, because police officers
    do not choose to pick up firearms for use in criminal activities, they are
    not susceptible to the legislations general deterrent aims. Put another way,
    the suggestion is that the legislation is focused on deterring those who are
    not otherwise authorized to use a firearm, real criminals, or members of
    criminal organizations who may choose to employ firearms. It is not meant to
    apply to police officers who misjudge their authorization to use purposeful,
    deadly force beyond the protection of ss. 25 and 34 of the
Criminal Code
.

[166]

The trial judge rejected
    this submission. He acknowledged that the Preamble to the
Tackling Violent
    Crime Act
failed to precisely state the purpose of s. 239. However, after
    examining other statements of the Justice Minister, the trial judge reached the
    following conclusion on the issue of the provisions intent (Constitutional
    Ruling, at para. 142):

I agree that these statements on the one hand emphasize that
    the mandatory minimum sentence does target the use of guns by criminal gangs,
    but on the other hand the statements include a mandatory minimum sentence if
    one is in the business of using a gun
or
associated with gangs as well
    as tougher sentencing for those who commit serious gun crimes or only
    individuals who want to get involved with serious firearms offences. In my
    view the statements suggest only one purpose with a particular emphasis on the
    criminal element. Moreover, the emphasis on gangs is understandable in the
    context of the minister seeking to persuade the Senate to act and in the
    context of seeking to promote the governments agenda with the Canadian public.
    In my view the statements made by the minister establish a sole purpose with
    respect to s. 239 of the
Criminal Code
and that is to deter the use of
    firearms by anyone with respect to the commission of serious crimes such as
    attempted murder with particular emphasis on those involved in crime. [Emphasis
    in original.]

[167]

Turning to the
    text of s. 239, the trial judge observed that the provision applies to
    everyone and does not seek to exclude any particular class of individuals.
    Moreover, when ss. 239(1)(a)(i) and (a.1) were enacted, s. 25 of the
Criminal
    Code
already provided protection to police officers from prosecution for
    the use of lethal force, when justified. As the trial judge said, at para. 147:
    Once the protection [of s. 25] is gone it is difficult see why an officer is
    in a better position than an ordinary citizen if the lethal force used amounts
    to attempted murder. By its broad terms, and by the specific use of
    everyone, he held that the provisions apply to the so-called criminal
    element, as well as ordinary citizens and police officers. He said, at para.
    150:

Having regard to the plain wording of the section I am unable
    to conclude that by emphasizing the aspect of deterrence to criminals
    Parliament meant to exclude police officers. Indeed, the defence concedes that
    s. 239 applies to members of the public and not just to persons associated with
    criminal organizations.

[168]

We agree with
    this analysis.

[169]

The appellants
    position proceeds on the faulty basis that, because police officers are
    required to carry firearms for the protection of themselves and members of the
    public, they are somehow immunized from the deterrent effect of the mandatory
    minimum sentences in ss. 239(1)(a)(i) and (a.1). This is problematic for two
    reasons.

[170]

First, the
    challenged provisions do not discriminate between the different ways
    (legitimate or otherwise) that someone comes into possession of a firearm.
    Their sole focus is to address the situation of someone who, unjustifiably,
    tries to kill another person with a firearm. Police officers obligation to
    carry firearms does not preclude their criminal misuse in excessive force
    scenarios. Indeed, it would be strange if Parliament intended to deter those
    who choose to pick up a firearm for criminal misuse, or members of a criminal
    organization, but not those who are required to carry firearms while carrying
    out their duties to protect the public. Moreover, the potential for a police
    officer to criminally misuse a firearm is not necessarily restricted to
    excessive force scenarios. Any individual, including police officers, once
    armed with a gun, is capable of using it to end life. Section 239 addresses all
    of these scenarios, all of which reflect extreme levels of moral
    blameworthiness.

[171]

Similar
    reasoning applies to the appellants example of an individual who lawfully picks
    up a firearm in self-defence; in other words, an individual who does not arm
    himself or herself for a criminal purpose, but who subsequently exceeds the
    scope of self-defence in trying to kill someone with the firearm. Such conduct
    still attracts a high degree of moral blameworthiness. We note as well that
    this scenario is very similar to the appellants home intruder hypothetical
    under s. 12. As we discuss below in relation to the appellants blunt object
    scenario, what are ultimately s. 12 proportionality claims should not be considered
    under s. 7.

[172]

Second, the
    appellant casts the deterrence purpose too narrowly. The imposition of a
    mandatory minimum sentence under ss. 239(1)(a)(i) or (a.1) is not necessarily
    restricted to deterring those who are similarly situated to a particular offender.
    In other words, the deterrent force of these provisions does not proceed on a
    class-by-class basis. Canadian law takes a heavy stance on firearms. Its
    deterrent effect may well be broader, deterring all who might be inclined to
    use a firearm to kill someone. The deterrent value of the sentences mandated in
    ss. 239(1)(a)(i) and (a.1), when applied to a police officer, are capable of
    extending well beyond this group of potential offenders.

[173]

The appellant
    also submits that ss. 239(1)(a)(i) and (a.1) are overbroad as they could apply
    to situations where an individual with the intent to kill uses a firearm as a
    blunt instrument but does not fire it. The appellant contends that the impugned
    mandatory minimum sentences were never meant to apply to this scenario. He
    points out that a person who commits attempted murder by beating someone with a
    firearm would be subject to a mandatory minimum sentence, whereas a person who
    uses a baseball bat to commit the same offence would not.

[174]

This submission
    must be approached with some skepticism. As noted in paras. 149-151 above, the
    review of a mandatory minimum sentence under s. 7 is not intended to indulge s.
    12 claims on a different or lower standard. The appellants use of this example
    raises this concern. The appellant advanced the same scenario before the trial
    judge. However, instead of framing it as an example of overbreadth, he advanced
    it as a hypothetical scenario for the purposes of s. 12. The trial judge found
    the scenario unpersuasive (Constitutional Ruling, at paras. 90-92).

[175]

In any event, we
    are not persuaded that the use of a firearm as a blunt instrument runs afoul of
    the legitimate purpose of ss. 239(1)(a)(i) and (a.1). As the Crown observes,
    the section applies to everyone who attempts by any means to commit murder if
    a firearm is
used
in the commission of an offence. Had Parliament
    intended to restrict the provisions to situations in which firearms are
    actually fired, it could have said so by employing the verb discharged in
    place of used, as it did in other sections of the
Tackling Violent Crime
    Act
(see ss. 3, 8, 17, 35, 40, 57 and 63).

[176]

Moreover, it
    makes sense that Parliament would seek to deter
all
uses of a firearm
    in the context of attempted murder. The mere presence of a firearm during the commission
    of an offence escalates the potential for lethal violence. In
R. v. Felawka
,
    [1993] 4 S.C.R. 199, Cory J., writing for the majority, made the following
    observations about firearms, at p. 211:

A firearm is expressly designed to kill or wound. It operates
    with deadly efficiency in carrying out the object of its design. It follows
    that such a deadly weapon can, of course, be used for purposes of threatening
    and intimidating. Indeed, it is hard to imagine anything more intimidating or
    dangerous than a brandished firearm. A person waving a gun and calling
    "hands up" can be reasonably certain that the suggestion will be
    obeyed. A firearm is quite different from an object such as a carving knife or
    an ice pick which will normally be used for legitimate purposes. A firearm,
    however, is always a weapon. No matter what the intention may be of the person
    carrying a gun, the firearm itself presents the ultimate threat of death to
    those in its presence.

[177]

Similarly, in
R.
    v. Steele
, 2007 SCC 36, [2007] 3 S.C.R. 3, Fish J. held, at para. 23: The
    use of a firearm in the commission of a crime exacerbates its terrorizing
    effects, whether the firearm is real or a mere imitation.

[178]

Lastly, the
    appellants comparison between a beating with a gun and a beating with a baseball
    bat is unconvincing. Someone who attacks another person with a blunt object,
    whether it be a baseball bat, a lead pipe, a piece of wood, or a firearm, and
    who intends to kill that person, will undoubtedly be liable to a sentence well
    within the range set out in
Tan
. In any event, the use of a gun, as
    opposed to these other instruments, is more serious. As noted in
Steele
,
    the fact that the blunt instrument is a gun will exacerbate the seriousness of
    the situation  in addition to its terrorizing capabilities, there is always
    the fear that the gun may end up being used in the manner for which it was
    manufactured, intentionally or otherwise.

[179]

While this is
    sufficient to dispose of this aspect of the appellants argument, we add the
    following observations. The appellant points to deterrence as the singular
    consideration in this analysis. However, s. 239 operates within the broader
    framework of Part XXIII  Sentencing of the
Criminal Code
, especially
    the purpose and principles of sentencing in ss. 718 to 718.2. Specific and
    general deterrence are key objectives, reflected in s. 718(b). However,
    mandatory minimum sentences further other goals. In particular, s. 718(a)
    provides that a sentence may be imposed with a view to denouncing unlawful
    conduct and harm done to victims and the community.

[180]

As discussed in
    the following section when we review the fitness of the appellants sentence,
    general deterrence and denunciation are jointly responsible for the lengthy
    sentences routinely imposed for attempted murder. In
R. v. M. (C.A.)
,
    [1996] 1 S.C.R. 500, Lamer C.J. described denunciation in the following way, at
    para. 81:

The objective of denunciation mandates that a sentence should
    also communicate society's condemnation of that particular offender's conduct.
    In short, a sentence with a denunciatory element represents a symbolic,
    collective statement that the offender's conduct should be punished for
    encroaching on our society's basic code of values as enshrined within our
    substantive criminal law. As Lord Justice Lawton stated in
R. v. Sargeant
(1974), 60 Cr. App. Rep. 74, at p. 77: "society, through the courts, must
    show its abhorrence of particular types of crime, and the only way in which the
    courts can show this is by the sentences they pass."

[181]

Denunciation
    applies to all cases of attempted murder with a firearm, whether or not the
    person is a criminal, gang member, ordinary citizen, or a police officer.
    Indeed, given the serious trust reposed in police officers, the need to
    denounce the criminal misuse of a firearm may be even more compelling in these
    circumstances.

[182]

In conclusion,
    ss. 239(1)(a)(i) and (a.1) are not overly broad within the meaning of s. 7 of
    the
Charter
. Again, there is no need to resort to s. 1.

[183]

The trial judge
    did not err in rejecting the appellants constitutional challenges. He was
    entitled to sentence the appellant within the framework of s. 239 as a whole,
    including the mandatory minimum sentence available under s. 239(1)(a)(i).

(2)

The fitness of the sentence imposed

[184]

Having dismissed
    the appellants constitutional challenge, the trial judge sentenced the
    appellant to six years imprisonment. The appellant submits that a sentence
    beyond the five-year mandatory minimum sentence applicable to him was
    unjustified. He submits that the trial judge made errors in how he
    characterized the underlying facts of the offence, and how he applied the
    principles of sentencing. The Crown argues that the trial judges Reasons for
    Sentence reveal no factual or legal errors, and that the sentence imposed was
    fit.

[185]

We are not
    persuaded that the trial judge erred in how he characterized the appellants
    offence. Nor did he err in the application of the principles of sentencing. He
    correctly identified denunciation and general deterrence as the paramount
    considerations in this case. The sentence of six years imprisonment was
    manifestly fit, occupying the bottom end of the range identified in
Tan
.
    There is no basis to interfere.

(i)

Facts relating to appellant

[186]

At the time of
    the altercation with Mr. Yatim, the appellant was 30 years old. He was married
    with two children. He had been a police officer for three and a half years.

[187]

The trial judge
    acknowledged the appellants previous good character, his achievement in
    becoming a police officer despite unfavourable economic circumstances, and the
    personal care needs of his parents. The trial judge accepted that the appellant
    was a family man devoted to his wife and daughters (para. 62). Moreover, the
    appellant had no prior criminal record and was not prone to violent behaviour.
    Overall, the trial judge recognized that the appellants personal
    characteristics were very positive and must be viewed as a significant
    mitigating factor (para. 62). The trial judge held that the appellant was not
    in need of rehabilitation. He recognized that, given that the appellant would
    likely lose his job as a result of his conviction, and because of the intense
    adverse publicity his case had received, it was not necessary to assign any
    weight to specific deterrence (paras. 62, 67, 71).

(ii)

Facts
    relating to the offence

[188]

The trial judge
    concluded that the aggravating factors in this case significantly outweighed
    the mitigating features. He made certain factual findings and concluded that
    the appellants moral culpability was high. The appellant challenges these
    findings. We can find no error.

[189]

The trial judge
    concluded that the jurys verdict of acquittal on the count of murder was
    consistent with the finding by the jury that Officer Forcillo believed on
    reasonable grounds that it was necessary to use lethal force for the purpose of
    self-preservation from death or grievous bodily harm (para. 10). With respect
    to the count of attempted murder, the jury must have found that the appellant
    had the intent to kill Mr. Yatim and at some point during the second volley [he]
    did not believe on reasonable grounds that it was either necessary or
    reasonable to discharge his firearmin order to preserve his life or those
    under his protection from death or grievous bodily harm (para. 11). The jury
    must have found that the use of force was excessive within the meaning of s. 26
    of the
Criminal Code
.

[190]

The trial judge
    made other findings that were relevant to his determination that the
    appellants moral culpability was high. The trial judge heeded the limitations
    on fact-finding in the sentencing context, outlined in
Ferguson
, at
    paras. 16-18. We see no error in the manner in which the trial judge characterized
    the relevant facts.

[191]

The trial judge
    rejected the appellants submission that the jurys verdict on the attempted
    murder charge was consistent with a finding that the appellant was lawfully
    justified in firing one or more of the initial shots of the second volley. The
    trial judges decision turned on whether, at the commencement of the second
    volley, Mr. Yatim posed an imminent threat, or merely a potential threat. He
    accepted that the appellant concluded that Mr. Yatim was an imminent threat.
    But he found this conclusion to be unreasonable. He rejected the appellants
    evidence that he misperceived that Mr. Yatim was in the process of getting up
    when he fired the second volley. As the trial judge said, at para. 23, the
    video is powerful evidence that demonstrates conclusively that what Officer
    Forcillo says occurred did not occur. Based on all of the evidence, the trial
    judge concluded that Mr. Yatim did not in fact present an imminent threat when
    he re-armed himself and the appellant fired the second volley (para. 22):

For the purpose of sentencing I am satisfied beyond a reasonable
    doubt that Officer Forcillo did not misperceive Mr. Yatim raising himself to a
    45-degree angle attempting thereby to get up to continue the attack. It follows
    from this finding that given the evidence of Officer Forcillo, which is
    consistent with the video, his decision to shoot was based solely on his
    observation that Mr. Yatim had rearmed himself. However, based on Officer Forcillo's
    training that observation is consistent only with Mr. Yatim being a potential
    threat in which case Officer Forcillo was trained not to shoot. I am satisfied
    beyond a reasonable doubt that prior to and during the second volley that based
    on all the evidence Mr. Yatim's conduct was consistent only with him being a
    potential threat and not an imminent threat.

[192]

The trial judge
    went on to find that, at the commencement of the second volley and throughout
    the second volley, the appellant shot Mr. Yatim precipitously and contrary
    to his training, which was to shoot only if there was an imminent threat
    (paras. 16, 25). In other words, the trial judge found that all of the shots
    fired at the prone Mr. Yatim during the second volley were unreasonable,
    unnecessary and excessive (para. 26). The trial judge also found, based in
    part on the appellants testimony, that the appellant made no attempt at
    de-escalation after the first volley. Indeed, he said nothing to Mr. Yatim. He
    simply waited five to six seconds and fired again. He fired six more bullets at
    Mr. Yatims centre mass with the intention of killing him (see paras. 33-37).

[193]

There was an
    evidentiary basis upon which the trial judge could make each of these findings.
    The trial judge was entitled to reject the appellants testimony that he
    believed that Mr. Yatim was getting up. He found the video evidence
    particularly compelling. While there was evidence that may have assisted the
    appellant on this issue, the trial judge was entitled to reject it, as the jury
    also appeared to have done. Lastly, the trial judges conclusion that the
    appellant acted contrary to his training was also reasonable in the
    circumstances. Having rejected the proposition that the appellant reasonably
    concluded that Mr. Yatim posed an imminent threat, the only logical conclusion
    that the trial judge could reach was that the appellants actions were not in
    accordance with his training.

(iii)

Application of the principles of sentencing

[194]

The appellant
    submits that the trial judges erroneous assessment of the appellants moral
    blameworthiness resulted in an excessive focus on deterrence and denunciation
    with a complete disregard for the principle of rehabilitation. We disagree.

[195]

Based on the
    factual findings that he made, the trial judge did not err in finding that the
    appellants moral blameworthiness was high. As noted above in the discussion of
    the constitutional issues, a high degree of moral blameworthiness is inherent
    in the offence of attempted murder, particularly when a firearm is used. The
    trial judges findings, reviewed in the previous paragraphs, only tend to
    highlight the seriousness of the offence.

[196]

We see no error
    in the trial judges reasoning that the appellant does
not
    require rehabilitation. This conclusion was based on the appellants personal
    characteristics and antecedents. The trial judge nonetheless treated those
    personal characteristics and antecedents as mitigating factors (see para. 67).

[197]

Further, the
    trial judge properly focused on denunciation and deterrence as the governing
    principles. A distinguishing feature of this case, which separates it from
    other attempted murder cases, is the appellants egregious breach of trust in
    using lethal force against a person who was not an imminent threat. This was
    underscored by the trial judge (see paras. 87, 90).

[198]

Police officers
    are charged with enormous responsibilities to maintain order and to protect
    members of the public from harm. At the same time, they are granted special
    privileges and protections to enable them to discharge these duties. Police
    officers are provided with firearms. They are meant to be used to protect
    themselves and others, all within the bounds of reasonableness and necessity,
    and in accordance with police training. To this end, s. 25 of the
Criminal
    Code
furnishes police officers with special powers that are not available
    to ordinary citizens. Where this and related provisions (s. 34 of the
Criminal
    Code
) are found not to apply, a police officer will have abused his or her
    authority and breached the trust of the public in general, and that of anyone
    harmed along the way.

[199]

This factor was
    critical to the Supreme Courts decision in
Ferguson
. As McLachlin
    C.J. observed at para. 28, police officers are trained to respond properly to
    volatile encounters; they are held to a higher standard than would be expected
    of ordinary citizens. In these circumstances, the principles of denunciation
    and general deterrence become magnified in the sentencing process.

[200]

As noted above
    in our analysis of the constitutional issues, in
Ferguson
, McLachlin
    C.J. held that the fact that the deceased initiated the violent encounter,
    leaving the officer with little time to consider his response, was offset by
    the position of trust that the officer held, and the fact that he had been
    trained to respond appropriately in the circumstances. The same considerations
    apply on appeal. While the jury at least had a reasonable doubt whether the
    appellant was justified in firing the shots that ultimately killed Mr. Yatim,
    it is clear that the second volley was clearly unnecessary and excessive. As
    the trial judge stated, the appellants conduct in firing the second volley constituted
    a 
fundamental failure to understand his duty to preserve all
    life and not just his own (para. 53).

[201]

In conclusion,
    we return to a theme addressed in the discussion of the constitutional issues
    above  the moral blameworthiness inherent in the crime of attempted murder. To
    repeat the words of Lamer C.J. in
Logan
, at p. 743: Quite simply, an
    attempted murderer is, if caught and convicted, a lucky murderer. See also
R. v. Marriott
, 2014
    NSCA 28, 309 C.C.C. (3d) 305, at para. 111, leave to appeal refused: [2014]
    S.C.C.A. No. 482. This truism has particular resonance in this case. A
    confluence of circumstances spared the appellant from a murder conviction and a
    mandatory life sentence.

[202]

The second
    volley involved the appellant shooting six hollow point bullets at Mr. Yatim as
    he lay prone, on his back, attempting to hold onto his knife. At the time, Mr.
    Yatim was contained and alone on the streetcar. The appellant was not alone 
    he had other officers with him, including Officer Kim beside him who also had
    his gun drawn but did not shoot. The appellant said absolutely nothing to Mr.
    Yatim before the second volley. The appellant knew from his training that Mr.
    Yatim did not pose an imminent threat to anyone merely by re-arming himself
    with a knife. He knew that he was not entitled to kill Mr. Yatim in these
    circumstances, yet he proceeded to fire six additional rounds fixed with that
    lethal intent.

[203]

Apart from his previous good character
    and lack of criminal record, there was little else by way of mitigation, not
    even an expression of remorse. In all of the circumstances, the sentence of six
    years imprisonment was fit.

[204]

The appeal against sentence is
    dismissed.

H.

disposition

[205]

The appeal against conviction is dismissed. Leave to appeal
    sentence is granted, but the sentence appeal is dismissed.

Released: GS  APR 30 2018

G.R. Strathy C.J.O.

Doherty J.A.

Gary T. Trotter
    J.A.





[1]

The appellant raised a third argument in his factum, alleging
    that the trial judge wrongly excluded evidence from other police officers at
    the scene about their training on the use of lethal force and their
    understanding about that training. Counsel made no oral submissions in support
    of this argument.
The court did not call on the Crown on this issue. We
    see no error in the trial judges ruling excluding the evidence. In any event,
    even if the evidence was admissible, it could not have had any effect on the
    verdict arrived at on the attempted murder charge.



[2]
An independent witness, who saw the confrontation from a different vantage
    point in a third storey window, also testified that she saw Mr. Yatim starting
    to get up.



[3]
In written submissions, the appellant argued that in the further alternative,
    if the second volley constituted a discrete transaction, as the appellant
    contends it must have to support a separate verdict, the attempted murder
    charge should not have been included in the same indictment as the murder
    charge. In this respect, the appellant relies on s. 589 of the
Criminal
    Code
. Section 589 prohibits joinder of other counts with a murder charge
    unless the accused consents or the charges arise out of the same transaction.
    Counsel
effectively abandoned this submission in oral argument
    and we will make no further reference to it.



[4]

In making this submission, the Crown relied on a number of
    other cases from the Court of Appeal of Quebec. In our view, none of the other
    cases directly support the Crowns broad assertion that leave is always
    required to bring a fresh evidence application in criminal proceedings.



[5]

Section 7.3.5 of this courts most recent
Practice Direction Concerning Criminal Appeals at the Court of
    Appeal for Ontario
(March 2017) addresses
Motions to Introduce Fresh Evidence. Section 7.3.5.1 indicates
    that this court
has broad discretion to receive
    further evidence on appeal when the court considers it in the interest of
    justice to do so:
Criminal Code
, s. 683. Such motions are heard by a
    three-judge panel of the court at the time the appeal is heard. In contrast to
    s. 54 of the
Rules of the Court of Appeal of Quebec in Criminal
    Matters
, s. 7.3.5 reserves the powers relating to fresh
    evidence for the panel hearing the appeal and is consistent with how this court
    addresses the application of s. 683 of the
Criminal Code
in practice.



[6]
The Act created mandatory sentences when a firearm is used in the following
    offences: criminal negligence causing death (s. 220(a)); manslaughter (s.
    236(a)); discharge a firearm with intent (s. 244(2)); sexual assault with a
    weapon (s. 272(2)(a)); aggravated sexual assault (s. 273(2)(a)); kidnapping (s.
    279(1.1)(a)); hostage taking (s. 279.1(2)(a)); robbery (s. 344(a)); and
    extortion (s. 346(1.1)(a)).



[7]

In
Stubbs
,
the trial judge imposed
    a total sentence of 22 years: 16 years for attempted murder; 16 years
    concurrent for break and enter to commit attempted murder; 4 years consecutive
    for use of a firearm while committing an indictable offence; 1 year consecutive
    for possessing a firearm while prohibited from doing so; and 1 year consecutive
    for disobeying a court order.


