COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Krasniqi, 2012
    ONCA 561

DATE: 20120829

DOCKET: C50478

Doherty, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Arber Krasniqi

Appellant

Timothy E. Breen, for the appellant

Elise Nakelsky and Scott Latimer, for the respondent

Heard:  June 5, 2012

On appeal from the conviction entered on November 27,
    2008 and the sentence imposed on February 26, 2009 by Justice Frank N. Marrocco
    of the Superior Court of Justice, sitting with a jury.

LaForme J.A.:

A.

Overview

[1]

The appellant was convicted of second degree murder for the stabbing
    death of 24-year-old Jordan Ormonde. He was sentenced to life imprisonment
    without eligibility for parole for 14 years.

[2]

The stabbing took place at a Toronto restaurant and bar on Danforth Avenue in April 2007. At the trial before Marrocco J. and a jury, the appellant testified
    and admitted that he stabbed and killed Mr. Ormonde. However, he testified to
    the effect that he was acting in self-defence.

[3]

At the trial, defence counsel requested and received a jury instruction
    on the defence of self-defence pursuant to s. 34(2) of the
Criminal Code
,
    R.S.C. 1985, c. C-46. He also requested and received what is referred to as a
    rolled-up charge
, which instructed the jury
    to consider the cumulative effects of
the potentially provocative
    acts of others and intoxication on the issue of the appellants intent to
    commit murder.

[4]

On his appeal from conviction, the appellants primary argument is that,
    although defence counsel did not ask the trial judge to instruct the jury on
    the defence of provocation in s. 232 of the
Criminal Code
, the trial
    judge erred in not doing so. The appellant raises five further grounds of
    appeal, one concerns the admission of evidence of the peaceable disposition of
    the victim, while the others involve the adequacy of the instructions to the
    jury.

[5]

I am satisfied that there was no air of reality to the defence of
    provocation as defined in s. 232.  The trial judge was not required to instruct
    the jury on the elements of this defence. The trial judges decision to admit
    the evidence of the deceaseds peaceful disposition was soundly based. In all
    other respects, the trial judges charge was fair, balanced and adequately
    instructed the jury on how to apply the law to the evidence.

B.

The evidence at trial

(a)

The Crowns evidence

[6]

Early in the morning of April 22, 2007, Jordan Ormonde was out with his
    girlfriend, Zoe Papathanasakis, celebrating a friends birthday at Kokkino, a
    restaurant and bar located on Danforth Avenue. Kokkino caters to a largely
    Greek clientele. Many of the birthday party guests, including Jordan, worked at Mezes, another Danforth Avenue restaurant.

[7]

The appellant entered Kokkino just before last call at 2:00 a.m. A
    waiter at Kokkino, Loukas Pappas, testified that he noticed the appellant
    arrive with two companions. The appellants companions were wearing t-shirts
    displaying the Albanian flag.

[8]

Loukas testified in chief that he noticed the appellants group because
    they were not regulars and they were acting very strange. In cross-examination,
    Loukas testified that his attention was drawn to them because they were dancing
    by themselves and the appellant was acting like Al Pacino in Scarface. He
    agreed with defence counsels suggestion that they looked like Mafia.

[9]

Loukas was carrying a tray of drinks when he unintentionally bumped into
    the appellants shoulder. According to Loukas, the appellant shouted something
    along the lines of, Dont fucking touch me. or You know who fucking I am? Im
    Albanian. The appellant then gestured towards his hip area, implying that he
    was carrying a weapon. Loukas testified that he thought he said, Ill be
    back. He told his co-workers what had happened and warned them to keep an eye
    on the appellant.

[10]

Chris
    Sakkas, who was a guest of the birthday party, testified that he was standing
    beside Zoe and Jordan singing aloud to a Greek song when the appellant
    approached him and asked him to dance. Chris replied: I dont dance, I just
    sing. The appellant responded: Come on, everybody that sings, dances. Chris
    testified that this conversation took place in Greek and he asked the appellant
    if he was Greek. The appellant responded that he was Albanian. Chris said he
    sensed some tension, so he pointed to his Greek soccer jersey and asked if the
    appellant liked this team. The appellant laughed and put his arm around Chris
    in a manner that was a little aggressive.

[11]

Traditional
    Greek music was playing and people were dancing in a circle dance, holding
    hands. The appellant joined the dance and took Zoes hand. After the circle
    dance ended, Chris testified that the music changed to a song that is danced
    with partners, and Zoe danced with the appellant. Chris joked to Jordan that it would be funny if Jordan went over and said, Im her boyfriend. Chris said he thought
    this would be funny because the appellant was a small man, while Jordan was much bigger.  Jordan remained passive and responded, Yeah, yeah, you know, in a
    while, in a while.

[12]

Zoe
    then returned to be with Jordan and Chris. According to Zoe, after she stopped
    dancing, she was talking to Jordan when she felt someone grab her wrist from
    behind. It was the appellant, who was holding a chair in his other hand. The
    appellant told her to dance on the chair. She said, No, thanks. He repeated
    the demand a couple more times and she repeated, No, thank you. He was
    squeezing her wrist really tight and trying to pull her towards the chair. Eventually
    he let go and moved towards the bar.

[13]

At
    about this time, Tommy Kalogeropoulos, another birthday party guest,  started
    talking with Jordan and Zoe. The appellant approached again and made a comment.
    According to Zoe, he said something like, Im watching her dance. Tommy and
    Jordan could not hear what he had said. Jordan said, Pardon me?, but did not
    get a response. Tommy said, Sorry, I cant hear you more than once. He still
    could not hear exactly what the appellant was saying, but distinctly heard the
    word fuck. He saw that the appellant had a mean look on his face and was
    belligerent, [l]ike he was getting a little louder and a little bit more
    aggressive. Tommy started to think that maybe this guy is not a nice guy.
    Tommy recalled Jordan asking, What the fucks this guys problem?

[14]

Tommy
    testified that he kept an eye on the appellant, whom he saw flailing his hands,
    yelling, and becoming agitated. The appellant came close to Tommy and Tommy
    asked him, What the fuck is your problem? Tommy recalled saying to the
    appellant: Were here for a birthday party. ... Youre messing with the wrong
    group of guys. ... We just want to have a good time. Please just leave us
    alone.

[15]

Chris
    saw the confrontation between Tommy and the appellant. He heard Tommy say in
    what sounded like a question, Hes a nice guy, Im not. Chris saw the appellant
    and a friend of the appellant become aggressive, yelling, shut the fuck up,
    get the fuck out of our face. Tommy testified that the appellant grabbed him
    by the shirt and then Tommy tried to hit his arms down. Chris testified that
    either the appellant or the appellants friend shoved Tommy. According to
    Tommy, the appellants friend tried to get in between them to make sure nothing
    happened. The appellant was starting to lose it. After going after Tommy, he
    then started going after Jordan.

[16]

Chris
    testified that after Tommy was shoved, Jordan stepped in and grabbed the
    appellant with his right hand and put him up against the bar in order to
    control him. Chris briefly looked away, and when he looked back, the appellant
    was holding a knife in the air above his head. Chris did not see the knife make
    contact with Jordan, but then saw blood gushing from Jordans neck. He saw the
    appellant and his friend run out of the restaurant, chased by other patrons.

[17]

Chris
    applied pressure to Jordans wound in an attempt to stop the bleeding. Jordan replaced Chris hand with his own. He was assisted to a chair, when he began to
    shake violently and fell to the floor, where he was cared for until the
    ambulance arrived. The following night, Jordan died from his injuries in
    hospital.

[18]

Chris
    and Tommy were both involved in an attempt to chase down the appellant, along
    with other patrons of Kokkino. They testified that a police cruiser became involved
    in the pursuit, but the appellant and his friend managed to get away.

[19]

The
    appellant was eventually apprehended three months later in New York City. Two
    women from Toronto who were visiting New York met him in a bar and recognized
    him from wanted posters in Toronto. They alerted the Toronto Police Service,
    which requested the United States Marshal Service to arrest him.

[20]

Two
    U.S. marshals apprehended the appellant in an apartment where he was staying.
    The appellant spontaneously admitted to the marshals  who were not
    investigating the crime but only effecting the arrest  that he had stabbed and
    killed the victim. The marshals decided to read the appellant a
Miranda
warning. The appellant continued to talk to them and described what had
    happened on the night in question, including making the following statement, as
    recalled by one of the marshals who testified at the trial as follows:
[1]

He stated that he was on the bar, or on top of a bar, and this
    angered some of the individuals in the bar. Mr. Krasniqi said that he was
    knocked off the bar, and that angered him, and that he, Mr. Krasniqi, wasnt
    going to take that. He said he pulled out a knife, stabbed an individual in the
    neck. Said he had blood all over him, and then he got scared and fled.

(b)

Defence Evidence

[21]

The
    appellant testified in his own defence. He said that on the evening in
    question, he had been drinking at a bar on the Danforth called Iliada with an
    acquaintance/friend named Sam. The appellant, who is of Albanian origin and a
    carpet installer by trade, said that Sam was also an Albanian carpet installer
    whom he had met on a construction site four or five months earlier.

[22]

The
    appellant and Sam left Iliada to get food. They stopped at Sams van to see a
    carpet tool that Sam had mentioned. The appellant noticed a knife in the van,
    which Sam said could be used for carpeting stairs. The appellant asked if he
    could have it. The appellant took the knife and placed it in his front pants
    pocket.

[23]

As
    the appellant and Sam walked along Danforth Avenue looking for somewhere to
    eat, Sam saw a friend of his named Tony standing outside Kokkino. Tony invited
    them to come inside, which they did.

[24]

Tony
    introduced Sam and the appellant to his friends. The appellant testified that
    he had a drink and two shots with them. According to the appellant, he noticed
    Loukas watching them. He said that Loukas looked at his group like they were
    dirt people. According to the appellant, Chris Sakkas, who was wearing a
    Greek soccer shirt, approached his friend Sam, who was wearing an Albanian
    soccer shirt, and said, Oh, look at that, thats better than yours. The
    appellant said that he told Chris that he was not too interested in soccer and
    said, Lets drink and have fun, dance. He denied asking Chris to dance, or
    speaking to him in Greek, noting that he only knows a few Greek words.

[25]

He
    testified that after Chris left, he danced with one of the women in his group,
    Maggie. They later joined in the circle dance. He acknowledged holding Zoes
    hand in the circle dance. When the music changed, he said that Zoe danced with them.
    According to the appellant, Maggie danced on a chair and then he did the same.
    He told Zoe that she was next, but she declined. He testified that Jordan came over and grabbed Zoe. The appellant apologized and Jordan said, Get the fuck
    out of here, so the appellant left and tried unsuccessfully to get more
    drinks.

[26]

According
    to the appellant, he was dancing with Maggie when Loukas came along and punched
    him hard in his back. He said that Loukas asked him, What the hell you doing?
    You know thats my buddys girlfriend. The appellant told him, Get the hell
    out of here. Loukas told him, Ill be back. The appellant saw Chris and
    Tommy laughing and Loukas went over to them.

[27]

According
    to the appellant, Tommy and Loukas then approached him and Tommy said, Do you
    know that you were dancing with my buddys girlfriend? The appellant said that
    Tommy was trying to come towards him, but Tony restrained him. He heard Tommy
    say, Hes a nice guy but Im not. The appellant asked Tommy what his problem
    was, and then Tommy tried to reach for him and the appellant pushed his hands
    away. The appellant told Tony he wanted to leave, but then Jordan grabbed him by the throat with his left hand and pushed his back into the counter. He said
    that he thought he was going to die. Jordan hit him on the nose and his face
    went numb. The appellant said he took out his knife and slapped him two or
    three times, after which Jordan let him go.

[28]

The
    appellant went on to testify at length about his escape, his flight to the United States, and his subsequent arrest.

C.

Theories of the Case

(a)  The
    Defence Theory

[29]

The
    theory of the defence was that the appellant acted in self-defence in stabbing Jordan. According to the defence, it was clear that Albanians were not welcome in Kokkino, a
    Greek bar. Defence counsel described the racial animus of the Crowns key
    witnesses towards Albanians in general, and towards the appellant in
    particular. According to the defence, the appellant was subjected to hostility
    from Loukas, Chris and Tommy. Finally, as the appellant was trying to leave, Jordan  a man two-and-a-half times his size  grabbed him by the neck and was squeezing
    the life out of him. In the words of defence counsel, the appellant,

did not have a Hollywood director
    to choreograph a well-timed punch to the midsection, a kick to the groin, or a
    karate chop to the neck. He thought he had no choice, when he took out the
    knife. Him or me. Self-defence.

[30]

Defence
    counsel asked the jury to consider that the Crown witnesses initial statements
    to police indicated that Tommy and Jordan were the aggressors. Their skewed
    testimony at trial was attributable to talking to others, their racial beliefs,
    and the fact that their close friend was dead.

(b)    The Crowns Theory

[31]

The
    Crowns position was that the appellant had the intent for murder and was not
    acting in self-defence. The Crown contended that the appellant went into
    Kokkino armed with a knife and he began starting trouble shortly after he came
    in. He was the one who caused all of the problems with Loukas, Chris, Zoe and
    Tommy. And he was the aggressor just before the stabbing, having attacked
    Tommy. Then, when Jordan came to Tommys aid, he violently and deliberately
    plunged his knife into Jordans neck, in an area that was sure to cause death
    or cause serious bodily harm that could result in death.

[32]

After
    stabbing Jordan, the appellant ran from the bar, evaded the police, and
    ultimately fled to the United States. He did not return to answer for his crime
    until he was apprehended three months later. The Crown submitted that these are
    not the actions of a man who had acted in self-defence.

D.

The issues on appeal

[33]

The
    appellant challenges the second-degree murder conviction on the following six grounds:

(1) the trial judge erred in failing to leave the defence of
    provocation to the jury;

(2) the trial judge erred in admitting evidence of the victims
    good character;

(3) the trial judge erred in failing to give a limiting
    instruction with respect to the evidence of the appellants bad character;

(4) the trial judge erred in failing to review the position of
    the defence and the evidence in support;

(5) the trial judge erred in failing to direct the jury that no
    inference could be drawn from the failure of the defence to call certain witnesses;

(6) the trial judge erred in charging the jury on self-defence.

[34]

The
    appellant also appeals from his sentence.

E.

Analysis

[35]

We called upon the Crown only to respond to the issues of
    provocation and three complaints about the trial judges charge to the jury,
    namely:
(4) the review of the defence position and supporting evidence;
(5) the alleged failure to

instruct
    on any inference in connection with the defence not calling certain witnesses;
    and (6) the instruction on self-defence.

Conviction Appeal

(1)

Did the trial judge err in failing to leave the
    defence of provocation with the jury?

(a)

Provocation under s. 232 of the
Criminal Code

[36]

The
    defence of provocation in s. 232 of the
Criminal Code
is a
    partial defence. More specifically, it operates as an excuse that has the
    effect of reducing murder to manslaughter when certain requirements are met:
R.
    v. Tran
, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 9; see also
R. v.
    Mayuran
, 2012 SCC 31.

[37]

In
Tran
, Charron J. for the unanimous Supreme Court observed that
    decisions of that court have variously described the requirements of the
    defence of provocation in s. 232 as comprising either two, three or four
    elements: see
R. v. Thibert
, [1996] 1 S.C.R. 37, at para. 4;
R. v.
    Hill
, [1986] 1 S.C.R. 313 at p. 324; and
R. v. Parent
, 2001 SCC
    30, [2001] 1 S.C.R. 761, at para. 10. Charron J. commented, at para. 11, that
    [t]hese various formulations do not differ in substance.

[38]

Charron
    J. expressed the view, at para. 23, that the requirements of s. 232 are most
    usefully described as comprising two elements, one objective and the other
    subjective. She cited with approval the following passage from Cory J.s
    majority judgment in
Thibert
, at para. 4:

First, there must be a wrongful act or insult of such a nature
    that it is sufficient to deprive an ordinary person of the power of self-control
    as the objective element. Second, the subjective element requires that the
    accused act upon that insult on the sudden and before there was time for his
    passion to cool.

[39]

Charron
    J. went on to describe the objective and the subjective elements as each being
    two-fold. In her words, at paras. 25 and 36:

For the purpose of discussion, the objective element may be
    viewed as two-fold: (1) there must be a wrongful act or insult; and (2) the
    wrongful act or insult must be sufficient to deprive an ordinary person of the
    power of self-control.

The subjective element can also be usefully described as
    two-fold: (1) the accused must have acted in response to the provocation; and
    (2) on the sudden before there was time for his or her passion to cool.

(b)

Counsels position on leaving provocation with
    the jury in this case

[40]

In pre-charge submissions,
    Crown counsel took the position that while the evidence to support the
    statutory defence of provocation was minimal, there was sufficient evidence to
    justify an instruction on that defence.  In contrast, defence counsel asked for
    what is known as a rolled up charge on the issue of the intent required for
    murder.  That charge would instruct the jury to take into account the effect of
    the appellants consumption of alcohol, his anger based in part on the
    provocative acts directed at him while he was in the restaurant, and the
    possibility that the appellant had accidentally stabbed the victim in the
    neck.  Defence counsel argued
:

Essentially, all of those
    factors negate the specific intention to murder, which is why, in my
    submission, whats termed in Justice Watts manual [
Watts Manual
    of Criminal Jury Instructions, (Toronto: Carswell, 2005)]
as the rolled-up charge is the appropriate one,
    where its essentially a group of factors all rolled up together, which negate
    the specific intention for murder and bring it down to manslaughter.

[41]

The
    trial judge interjected: So to cut to the chase, you think I should leave
    provocation with them. Defence counsel responded:

I think that specifically you should leave provocation, rolled
    up with all of the other factors that have been brought into play in the
    evidence in this case, that it should all be put together  essentially saying
    that all of these factors  each individual factor would bring it from second
    degree down to manslaughter. But taking into account all of these factors, each
    one of these factors is in play in this case in a very real way; and since each
    individual one could bring it from second down to manslaughter, all of them
    together have to be considered.

(c)

The trial judges charge

[42]

The
    trial judge did not charge the jury on the elements of the defence of
    provocation as found in s. 232 of the
Criminal Code
. He instead provided
    a rolled-up charge as requested by defence counsel.

[43]

More
    specifically, the trial judge instructed the jury to consider the evidence of
    the appellants alcohol consumption, along with the appellants evidence of the
    provocative behaviour that he experienced that night from Loukas, Chris, and Tommy,
    as well as his evidence that he was trying to leave when Jordan Ormonde
    grabbed him by the throat. He also told the jury not to consider the post-offence
    conduct evidence of the appellants flight to the United States on the issue of
    intent. The trial judge then gave the following instruction:

You should consider this evidence, and the extent to which you
    accept it, any of it, not just by itself on a particular issue to which it
    relates, but all together, along with any other evidence that might suggest
    that Mr. Krasniqi acted instinctively, in the sudden excitement of the moment,
    without thinking about the consequences of what he did, and without either
    state of mind necessary to make the unlawful killing of Mr. Ormonde murder.

You must consider the effect of all this evidence, the sum
    total of it, along with any other evidence that you accept, that seems or tends
    to show Mr. Krasniqis state of mind, when you are deciding whether Crown
    counsel has proven beyond a reasonable doubt that Mr. Krasniqis unlawful
    killing of Mr. Ormonde was murder.

If you are not satisfied beyond a reasonable doubt that Mr.
    Krasniqi had either state of mind required to make his unlawful killing of Mr.
    Ormonde murder, you must find Mr. Krasniqi not guilty of second degree murder,
    but guilty of manslaughter, and your deliberations are over.

(d)

Application to introduce fresh evidence on appeal

[44]

The appellant applied to introduce trial counsels
    affidavit as fresh evidence on the appeal.  In the affidavit, counsel acknowledged
    that he did not appreciate the difference between provocation, as defined in s.
    232, which creates a statutory partial defence to murder, and provocation in
    the broader sense, meaning conduct or words that may cause the accused to have
    been angered and to have acted without intending the consequences of that
    action.  The statutory defence operates where the accused has the intention for
    murder and would otherwise be guilty of murder.  Provocation in the latter
    sense is an evidentiary factor relevant to whether the Crown has proved the
    requisite intent
.

[45]

In the course of oral argument, the court declined to
    admit counsels affidavit.  The appellant does not allege ineffective
    assistance of counsel.  The record at trial, including the pre-charge submissions
    of defence counsel, speaks for itself.  In our view, that record demonstrates a
    misapprehension by defence counsel as to the difference between provocation
    under s. 232 and provocation relating to intent.  That confusion forecloses the
    Crown from relying on the defence position at trial to support the contention
    that there was no air of reality to the statutory defence of provocation.
    Counsels confusion, however, goes no further than that.  The issue remains
    whether on the evidence the trial judge ought to have left the defence of
    provocation with the jury.  This brings me to the fundamental question on this
    appeal  was there an air of reality to the defence of provocation?

(e)

Was there an air of reality to the defence of provocation?

[46]

If
    there was an air of reality to the defence of provocation, then in addition to
    providing the rolled-up charge on the
mens rea
for murder, the trial
    judge ought to have instructed the jury to consider if the Crown had disproved the
    elements of the defence of provocation. Charron J. in
Tran
, at paras.
    40-41, described the analysis that a trial judge must undertake in deciding
    whether the defence of provocation should be left with the jury:

The term air of reality refers to the inquiry into whether
    there is an evidential foundation for a defence.

In a jury trial, the judge is the gatekeeper and judge of the
    law and must therefore put the defence to the jury only where there is evidence
    upon which a reasonable jury acting judicially could find that the defence
    succeeds (
Faid
, at p. 278) [
R. v. Faid
, [1983] 1 S.C.R. 265]. For
    the defence to succeed, the jury must have a reasonable doubt about whether
    each of the elements of provocation was present. This necessarily requires
    that there be a sufficient evidential basis in respect of each component of the
    defence before it is left to the jury: the evidence must be reasonably capable
    of supporting the inferences necessary to make out the defence before there is
    an air of reality to the defence (
Fontaine
, at para. 56 [
R. v. Fontaine
,
    2004 SCC 27, 1 S.C.R. 702];
R. v. Reddick
, [1991] 1 S.C.R. 1086, at p.
    1088, citing
Pappajohn v. The Queen
, [1980] 2 S.C.R. 120, at p.
    133).

[47]

Thus,
    for the trial judge to have erred in not leaving the statutory defence of
    provocation with the jury, there must be a sufficient evidential basis in
    respect of each component of the defence, in the sense that the evidence is
    reasonably capable of supporting the inferences necessary to make out the
    defence.

[48]

The
    appellant submits that this case is a textbook example of provocation. The
    following argument is found in the factum:

After repeated ethnic insults the appellant was assaulted by
    the deceased and reacted on the sudden. Although the appellant testified that
    he acted in self defence and did not intend to kill the deceased, he also
    testified that he lost control. In his statement to the U.S. Marshals the appellant described an altercation in a bar and that he wasnt going to take
    that. Indeed, it was the position of the prosecution that the appellant was
    the aggressor and had acted in a burst of anger. The evidence at trial easily
    yields a credible narrative that the appellant committed murder while acting in
    the heat of passion caused by sudden provocation. The failure to leave the
    defence with the jury requires that a new trial be ordered.

[49]

On
    appeal, the Crown accepts that there was some evidence, albeit weak, that was capable
    of supporting the inferences needed to make out the objective element of the
    defence of provocation. The wrongful act was Jordans alleged act of choking
    the appellant. If the jury accepted that this act occurred, the jury could potentially
    have found that there was an act that was sufficient to deprive an ordinary
    person of his or her power of self-control.

[50]

However,
    the Crown contends that there is no evidence that is capable of satisfying the
    subjective element of the defence, namely, that the accused must have acted in
    response to the provocation on the sudden before there was time for his passion
    to cool.

[51]

Charron
    J. explained in
Tran
, at para. 37, that [t]he inquiry into whether
    the accused was in fact acting in response to the provocation focuses on the
    accuseds subjective perceptions of the circumstances, including what the
    accused believed, intended or knew. In other words, the accused must have
    killed because he was provoked and not because the provocation existed
    (citations omitted). The suddenness requirement serves to distinguish
    provocation from an act of revenge. The wrongful act or insult must strike upon
    a mind unprepared for it, that it must make an unexpected impact that takes the
    understanding by surprise and sets the passions aflame:
Tran
, at
    para. 38, citing
R. v. Tripodi
, [1955] S.C.R. 438, at p. 443.

[52]

In
    applying the air of reality test, it is necessary to consider the totality of
    the evidence, including the appellants evidence. The appellant testified at
    length about the events at Kokkino, including his reaction to being grabbed by Jordan. In chief, he described the events immediately before the stabbing as follows:

He grabbed me and lift me against what I came here to this
    side. And I hurt my back. When I woke up in the morning, I hurt my back here,
    and nose bleeding.

Q. How long was he holding you there?

A. It seems to me Im going to die  maybe five seconds, ten
    seconds, but it hurt. Choke.

Q. Did he do anything else while he was holding you?

A. He couldnt do nothing else, because he slapped me. I had no
    control. He hits me on the nose and the whole like when you go pull out a tooth.

Q. Your face was numb.

A. Numb, yeah. Sorry.

[53]

Defence
    counsel asked him why he pulled out the knife and he replied:

Because thats what came to my mind, that minute. What are you
    going to do, in front of a guy double-and-a-half your size, grabbing you like
    a kid.

The appellant later gave the
    following evidence in chief:

Q. Did you mean to kill Mr. Ormonde?

A. No.

Q. Why did you take out the knife?

A. Thats all I can think, in that moment, saving, I guess, my
    life.

Q. Say that again?

A. Saving, I guess, my life. In that moment I thought, Im
    dying. Choked.  [L]ike grabbing my kid eight years old and lift me up, what
    am I going to do? I couldnt do nothing. Double-and-a-half or more the size of
    mine.

Q. You thought it was either him or you.

A. I was. In that point, that was me. If it was not that knife,
    maybe, cutting, it was me for sure.

[54]

The
    appellants evidence in chief, read in its entirety, contains no indication
    whatsoever that he was acting out of anger, or with his passions inflamed, or
    as a result of a loss of self-control, in response to the alleged wrongful act
    of the victim in choking him. Rather his evidence was solely to the effect that
    his response in using the knife was motivated by the aim of self-preservation.

[55]

In
    cross-examination, the Crown put it to the appellant that he started getting
    very angry and lost control, and you started yelling at Tommy and Jordan. The
    appellant did not agree with Crown counsels suggestion. The Crown then asked
    about the incident with Jordan, which the appellant described as follows:

A. And I said to Sam, Lets go. Fuck those guys.

As I try to come in here he [Jordan] goes, No, youre not
    going nowhere, he said  grabbed me, lift me on the bar, pushed me on the bar,
    slapped me on the face. I lost control.

Q. Okay. And now, can you show me exactly how you stabbed Jordan?

.

A. He grabbed me here, Miss. Maybe its one, two steps away,
    grabbed me and lift me up. I stood in this side. Slapped me on the face.

I lost control. Grabbed the knife from here. Thats all it
    came, it seems like two, three minutes holding me. Like holding a person two,
    three minutes, they will die. To me it seems like that.

Grab the knife, and I was trying to reach him. But he was
    bigger than me, I couldnt reach him. And I was facing this side on him, and I
    slash maybe  to me seems like Im dying, in that moment. And I got him.

[56]

The
    appellants statements that he lost control must be read in the context of
    the totality of his evidence. The appellant did not suggest that he was
    overwhelmed by anger when the victim held him by his neck. Rather, his evidence
    was that, in stabbing the victim, he was [d]oing something to [make the
    victim] let me go. Thats why he got the cut. He further testified in
    cross-examination: If he saw maybe the knife, he will let me go or something.
     And he explained: [T]o stab him on the neck, it was never my intention I was
    trying to release myself. A complete review of the appellants testimony
    demonstrates that the appellants references to having lost control refer to
    his feeling that he could not escape from the victims grasp unless he stabbed
    him and not to a loss of control in the emotional sense.

[57]

As
    this court held in
R. v. Pilon
, 2009 ONCA 248, 243 C.C.C. (3d) 109, at
    para. 82: [I]t cannot be denied that an accuseds own evidence is an important
    consideration in the air of reality inquiry. However, as this court held in
R.
    v. Gill
, 2009 ONCA 124, at paras. 18-21, there may be an evidentiary basis
    upon which to leave a defence with the jury even where an accuseds own
    testimony disavows the defence of provocation.

[58]

In
    this case, there was no suggestion in the evidence of the Crown witnesses that
    the appellant was acting out of a sudden rage in response to having been restrained
    by Jordan, nor that he slashed Jordan before he had time to regain control of
    himself. Rather, the evidence from these witnesses indicated that the appellant
    was behaving aggressively before Jordan intervened and that Jordan was restraining the appellant from a physical confrontation with Tommy.

[59]

Thus,
    in my view, the trial judge did not err in refusing to leave the statutory
    defence of provocation with the jury. The appellants evidence is consistent
    with the defence of self-defence, but is not consistent with the defence of
    provocation. The observations of Dickson J. in
R. v. Faid
, [1983] 1 S.C.R. 265, at pp. 278-279,
apply with equal force to the present case:

Was there any evidence of passion or
    that he [the accused] acted upon the provocation on the sudden and before
    there was time for his passion to cool? We have only his evidence on the point
    and nowhere in that evidence does one find any suggestion that as a result of
    the blows or other conduct of Wilson [the victim] he was enraged, or that his
    passions were inflamed, or that he killed in heat of blood. There was no
    evidence of a sudden temporary loss of control rendering the accused so
    subject to passion as to make him or her for the moment not master of his mind
    which is, as Devlin J. said in
R. v. Duffy
, [1949] 1 All E.R. 932, of
    the essence of provocation. The defence throughout, the only defence, was
    self-defence. Faid [the accused], on his version, was using measured force to
    resist the force being used against him.

[60]

As
    there was no evidence capable of giving an air of reality to the defence of
    provocation, this ground of appeal fails.

(2)

Did the trial judge err in admitting evidence
    of the victims good character?

[61]

The
    trial judge ruled that the evidence of Jordans peaceful disposition was
    admissible as part of the Crowns case.  He observed that this evidence was
    relevant to the issue whether the appellant acted in self-defence, and that the
    evidence was of minimal prejudicial effect because it would emanate from
    witnesses who were otherwise testifying and whose sympathy for the victim, if
    such sympathy existed, would be obvious from their testimony in any event.

[62]

The
    appellant submits that the trial judge erred in admitting this evidence because
    it was of minimal probative value and of considerable prejudicial effect.  He
    says that the prejudicial effect of the evidence was considerable given the
    evidence before the jury of his bad character in the form of his prior criminal
    record.  Alternatively, the appellant argues that the trial judge erred in
    failing to instruct the jury on the limited use of the evidence.

[63]

The
    issue of Jordans general disposition for violence was relevant to the issues
    raised by the defence of self-defence, because the jury had to determine if Jordan had acted in a way that caused the appellant to fear that his life was in danger or that he
    would suffer grievous bodily harm from Jordan.  I agree with the trial judges
    view that the prejudicial effect of the evidence was minimal.  In light of the
    probative value of this evidence and its minimal prejudicial effect, I see no
    error in the trial judges decision to admit this evidence.

[64]

As
    for the adequacy of the trial judges charge to the jury on the use they could
    make of the evidence of Jordans good character, the trial judge made only one
    brief reference to the disposition evidence.  He did not draw any significant
    attention to the good character evidence in his charge.  By only including a
    very brief reference to this evidence, the trial judge ensured that the jury would
    not place unwarranted emphasis on this evidence.

[65]

Defence
    counsel did not object to the trial judges treatment of the evidence of
    Jordans good character.  Moreover, the jury would have been well aware of the
    defence position that, although there was evidence of Jordans usual peaceful disposition, Jordan was under the influence of drugs and alcohol that night,
    which may have altered his behaviour.  As defence counsel put it to the jury in
    closing:

Given the combination of alcohol and drugs in his system, Jordan was not his usual teddy bear self that night. His inhibitions were lowered. The
    teddy bear grew claws, and he became violent.

[66]

There
    is no basis for finding that the appellant was prejudiced by the trial judges
    failure to instruct the jury on the limited use of the evidence of the
    deceaseds good character. I would not give effect to this ground of appeal.

(3)

Did the trial judge err in failing to give a
    limiting instruction with respect to the evidence of the appellants bad
    character?

[67]

Here
    the appellant first objects to the trial judges handling of evidence
    consisting of false identity documents found at the apartment where the
    appellant was arrested.  He argues that the trial judge erred in not cautioning
    the jury about the improper use of this evidence. He contends that this
    evidence may have been used by the jury as confirmation of the stereotype that
    Albanians are criminals.

[68]

It
    was the appellant who raised the notion at the trial that the Greek community
    holds a stereotype of Albanian people as criminals.  Furthermore, the Crown did
    not lead any evidence to suggest that the appellants possession of falsified
    documents indicated that he was tied to organized crime.

[69]

There
    was no prejudice to the appellant from the absence of an instruction telling
    the jury that they should not use this evidence to infer that the appellant was
    involved with organized crime. The instruction that the appellant now seeks was
    specifically resisted by defence counsel on the basis that it would put the
    prohibited seeds [of other criminal conduct] in the minds of the jurors.

[70]

The
    trial judge reminded the jurors that the appellant testified that it is not
    uncommon to be able to get false documents. Further, he instructed them to
    consider the evidence only in assessing whether the appellants post-offence
    conduct was consistent with the defence of self-defence. These aspects of the
    charge mitigated any prejudicial effect of the evidence and obviated the need
    for the instruction that the appellant now seeks on appeal.

[71]

The
    appellant next submits that the trial judge erred in instructing the jury that
    the fact that he was carrying a knife when he entered Kokkino was relevant to
    the issue of intent.  He argues that the instruction given invited the jury to
    draw an inference of intent from bad character.  I disagree.

[72]

The evidence that the appellant was carrying a knife was critical to
    the narrative of events and the accompanying prejudice was of such a minimal
    nature that no limiting instruction was required.  The act of carrying a knife
    in the circumstances of this case is not such that it would encourage a jury to
    engage in propensity reasoning and to conclude that, because the appellant was
    carrying a knife, he was the sort of person likely to commit the offence.  I
    would dismiss this ground of appeal.

(4)

Did the trial judge err in failing to review
    the position of the defence and the evidence in support?

[73]

The
    appellant contends that the trial judge erred in failing to charge the jury on
    the position of the defence and the evidence relied on in support. This submission
    is not borne out by a review of the charge.

[74]

The
    trial judge first summarized the evidence of the appellants out-of-court statements
    to the U.S. marshals who arrested him. He instructed the jury to consider these
    statements along with the rest of the evidence in deciding whether the jurors
    have a reasonable doubt:

[Y]ou must consider all the remarks that might help Mr.
    Krasniqi, even if you cannot decide whether he said it or not.

If you decide that he made a remark that may help him in his
    defence, or you cant decide whether he made it, you will consider that
    statement along with the rest of the evidence in deciding whether you have a
    reasonable doubt.

[75]

The
    trial judge next described the evidence of post-offence conduct and advised the
    jury that this evidence may, or may not, help them decide whether the appellant
    was acting in self-defence.  The trial judge described at some length the
    evidence of the appellants conduct immediately after the stabbing, and while
    he was in New York.   Included in this review was a lengthy discussion of the
    appellants testimony about his post-offence conduct, including his
    explanations for acting in the way he did and his evidence indicating that he
    wanted to return to Toronto before the U.S. marshals apprehended him. Included
    in this review was the following instruction:

If you find that Mr. Krasniqi actually did and said what he is
    alleged to have done after the stabbing, you must be careful not to immediately
    conclude that he did or said so because he was conscious of having no
    justification for the stabbing of Jordan Ormonde.

To decide the reason why Mr. Krasniqi did and said what he did
    afterwards, you should consider all the evidence. Of particular importance is
    any evidence that offers an explanation.

For example, it was suggested that he ran away from the
    restaurant because he was being chased. He said he didnt surrender to police
    because he didnt see the police who overtook the chase. He said he disposed of
    the knife because he was in shock. He said he removed the bloody shirt, which
    was covered in blood, to wipe his face which was covered in blood because his
    nose was bleeding. He said he fled the country because he thought everyone
    would lie, and he would go to prison for life.

He said he intended to return. He said he knew that he could
    not find his witnesses. He said he used false documents to get into the United States because he was afraid to go to jail.

Before you can use this evidence about what Mr. Krasniqi did or
    said after the stabbing to help you decide that Mr. Krasniqi was not acting in
    self-defence, you must reject any innocent explanation for his flight and for
    his possession of false documents.

[76]

The
    trial judge then informed the jury of the essential elements of the offence of
    second degree murder and the elements of the defence of self-defence under s.
    34(2) of the
Criminal Code
. He went on to review the evidence of the
    witnesses concerning the events leading up to the stabbing. He also reviewed in
    detail the appellants evidence giving his version of the events at Kokkino,
    including his evidence that:

[T]he big guy, Jordan Ormonde, grabbed him by the throat,
    slapped him, and pinned him against the bar. He couldnt breathe. He didnt
    know what to do. He took the knife out of his pocket and slashed a couple of
    times. Blood came all over. Jordan let him go. Sam started running, and he
    started running.

He described the interaction with Tommy Kalogeropoulos prior to
    the stabbing. He said Tommy came closer to Tony and reached out his hand, and
    he pushed Tommys hand away. As he tried to leave, Jordan was there and grabbed
    his throat with his left hand, and pushed him back to the corner of the
    counter, holding him for about five to ten second.

Jordans hand came around most of his neck. He said it hurt. He
    said his face was slapped so hard that it was numb. He hit back with his right
    hand. He took the knife and slashed two or three times. He was shocked when the
    blood came all over him.

[77]

Thus,
    the trial judge clearly referred to the position of the defence and the
    evidence relied on in support of that position.

[78]

The
    appellant next argues that the trial judge ignored significant evidence that his
    counsel adduced in cross-examining the Crown witnesses, particularly evidence
    which demonstrated the animosity they felt towards Albanians. He also argues
    that the trial judges charge minimized various allegedly prior inconsistent
    statements of some of the Crown witnesses.

[79]

I
    do not accept this submission. It is not necessary for the trial judge to
    mention every nuance of the evidence as it came out in cross-examination. As
    the majority of the Supreme Court of Canada explained in
R. v. Daley
,
    2007 SCC 53, [2007] 3 S.C.R. 523, at para. 56:

[I]t is not the case that the trial judges must undertake an
    exhaustive review of the evidence.  Such a review may in some cases serve
    to confuse a jury as to the central issue.  Brevity in the jury charge is
    desired.

[80]

The
    majority in
Daley
also pointed out, at para. 58, that the trial judges
    instruction must be reviewed in the context of the addresses of counsel as they
    may fill gaps left in the charge. And the majority noted that the failure of
    defence counsel to object about this aspect of the charge is a factor to
    consider on appeal.

[81]

In
    the present case, the trial judges charge fairly and adequately described the
    central evidence presented at the trial. Virtually all of the extracts from
    cross-examination that the appellant says the trial judge should have mentioned
    were referred to by defence counsel in his closing address. In defence
    counsels objections to the charge, his only concern about the sufficiency of
    the trial judges review of the evidence was in relation to the evidence of
    Loukas Pappas. Defence counsel expressed concern that the trial judge had only
    summarized Loukas evidence in chief, without touching on some of the issues
    raised in cross-examination, particularly in relation to what Loukas had said
    about pushing the appellant. The trial judge did not recharge the jury on the
    nature of Loukas evidence regarding the push.

[82]

This
    narrow concern, which defence counsel indicated was of least importance on his
    list of concerns, is clearly not sufficient to warrant appellate intervention. In
    closing, defence counsel recounted to the jury the thrust of Loukas evidence regarding
    the push involving the appellant.

[83]

I
    would therefore dismiss this ground of appeal.

(5)

Did the trial judge err in failing to direct
    the jury that no inference could be drawn from the failure of the defence to
    call certain witnesses?

[84]

The
    appellant argues that the trial judge erred in failing to instruct the jury
    that no adverse inference could be drawn from the failure of the defence to
    call Sam or Tony as witnesses. Such an instruction is said to have been required
    because of the nature of the Crowns cross-examination and because of the
    Crowns position in closing.

[85]

In
    cross-examining the appellant, the Crown put the following questions to the
    appellant:

Q. Im going to suggest, your friend actually had to step in
    between [he and Tommy] to try and control you.

A. The friend that was already there, when he came, he saw him
    coming, because my friend, if you can change the place, I can show you exactly
    where it is. Every day Im thinking on that.

Q. Thats a friend who is not here?

A. Yes.

Q. Thats the friend who is not here.

A. Yeah.

Q. And Im going to suggest to you hes not here because you
    were the aggressor that night, and he knows what you did, and hes not going to
    come to Court and say that you were just having a nice time in that bar all
    night.

A. I dont agree with you.

Q. All right. ...

[86]

In
    the Crowns closing address to the jury, counsel made the following remark:

Mr. Krasniqi went, armed with a fishing knife, to a bar, with
    people he claims he cant find. But I ask you to find they arent coming
    forward for obvious reasons.

[87]

The
    appellant argues that there was no foundation for the Crowns comment. The
    police were unable to locate either witness. The cross-examination and closing
    address of Crown counsel suggested that the appellant had an obligation to call
    these witnesses and that the absence of such witnesses at the trial supported
    an inference of guilt. The trial judges failure to correct the Crowns
    position is alleged to constitute reversible error.

[88]

Prior
    to the impugned exchange in cross-examination referred to above, Crown counsel
    asked the appellant if he knew where Sam and Tony were and the appellant
    replied: No, Miss. I tried to find them, because Im in protect custody, and I
    dont see nobody here. Crown counsel then asked the appellant about how he
    knew Sam, and he explained that he had worked with him on a job. He was asked
    if he tried to find him after the incident, and he indicated that he could
    never find him. He was also asked about Tony and he testified that he had only
    met him that night. The following exchange then occurred:

Q. All right. Now given what youve told us about your side of
    the story, youd agree with me that it would be helpful to learn what they have
    to say about what happened that night.

A. It would be helpful, more than helpful for me at least, to
    save my life and case.

Q. And you had a terrible night, and these friends could come
    and talk about this terrible night.

A. Yes, maam,

Q. They could. All right. But you heard Detective Banks, these
    two guys never come forward.

A. Not to me, too.

...

Q. And youd agree with me that after that night,... there was
    a lot of publicity on TV about this case.

A. Yes, Miss.

Q. So it was a possibility that those two men could have seen
    the TV...?

A. Yes. Thats where I saw it... myself.

Q. But you dont know where they are; and they are not here
    today.

A. No, Miss.

[89]

While it would have been better had Crown counsel not
    made the impugned observations in closing, the trial judges repeated and
    powerful instruction on the burden of proof prevented the jury from using the
    failure to call witnesses to draw any adverse inferences against the appellant
.
    His instructions would have made it clear to the jury that there was no burden
    on the appellant to adduce them as witnesses. The trial judge told the jury
    numerous times about the burden of proof, including the following explanation:

Mr. Krasniqi does not have to present evidence or prove
    anything in this case; in particular, he does not have to prove that he is
    innocent. From start to finish, it is the Crown who must prove guilt beyond a
    reasonable doubt; it is not Mr. Krasniqi who must prove his innocence.

[90]

The
    trial judges charge to the jury also made it clear to them that they should
    not speculate or make up theories in the absence of supporting evidence:

You make your decision about the facts from the evidence given
    during the trial. There is not going to be any more evidence, and there is
    nothing else to consider but the evidence that you heard before, in this trial.

You are entitled to come to common sense conclusions, based on
    the evidence that you decide to accept. Do not speculate about what the
    evidence might have been, or permit, or guess, or make up theories, without evidence
    to support it.

[91]

The
    Crown made the comment about the absence of these witnesses in passing in the
    context of a detailed closing address. The trial judge instructed the jury not
    to speculate about what the evidence might have been and reminded them that
    there was no obligation on the appellant to prove anything. Finally, I note
    that defence counsel did not raise any objection on this point.

[92]

I
    would therefore dismiss this ground of appeal.

(6)

Did the trial judge err in charging the jury on self-defence?

[93]

The
    appellant submits that the trial judge made two errors in his instruction on
    self-defence.

[94]

First,
    the appellant contends that the trial judge failed to instruct the jury that he
    was not required to carefully measure the force used in responding to Jordans assault. Such an instruction was required because the Crown cross-examined the
    appellant about the alternatives that were open to him other than using his
    knife.

[95]

The
    Crown acknowledges that the trial judge erred in failing to provide the specific
    instruction of what is known as the
Baxter
instruction.  In
R. v.
    Baxter
(1975), 27 C.C.C. (2d) 96 (Ont. C.A.), Martin J.A. said, at p. 111:

[I]n deciding whether the force
    used by the accused was more than was necessary in self-defence under both s.
    34(1) and (2) the jury must bear in mind that a person defending himself
    against an attack, reasonably apprehended, cannot be expected to weigh to a
    nicety, the exact measure of defensive action[Citations omitted.].

[96]

While
    it is an error of law not to give a
Baxter
instruction where the
    accused is relying on either s. 34(1) or s. 34(2) of the
Criminal Code
, it is the
message in the
Baxter
instruction which must be brought home to the jury, not specific language
.
    In other words, it is t
he failure to instruct in
    the terms of
Baxter
that will be
    an error in law.  The most prudent way, or course, to instruct in this regard is
    to track the language in
Baxter.
However, when that does not occur, one then looks to the charge to see whether
    the essence of the message in the extract from
Baxter
is found in the jury instructions.

[97]

In
    this case, the absence of a specific
Baxter
instruction was mitigated
    by other aspects of the charge.
The
Baxter
message, in my view, comes through in the trial
    judges instructions.

[98]

In
    this case, the self-defence instruction under s. 34(2) was agreed upon by both
    counsel at the pre-charge conference.  The trial judges review of the
    appellants evidence, set out above at para. 76, would have made it clear to
    the jury that they could accept his reaction as being a legitimate response for
    the purposes of self-defence.  The trial judge did not suggest to the jury that
    they should consider if it was possible for the appellant to save himself
    otherwise than by using the knife.

[99]

In
    addition, the trial judge instructed the jury on how it should approach the
    issue whether the appellant honestly and reasonably believed that he could not
    save himself from being killed or seriously injured other than by killing or
    seriously injuring Jordan.  He told them that the issue was not whether the
    appellant was actually in danger of being killed or seriously injured, but
    rather whether he honestly and reasonably feared he was in that kind of
    danger.  The overall language of the instruction on self-defence would have
    conveyed to the jury that the appellant was not required to precisely weigh the
    exact measure of defensive action that was required.

[100]

Second, the
    appellant submits that the trial judge erred in failing to explicitly instruct
    the jury that even if they found the appellant was the aggressor that night,
    self-defence was still available.  This instruction is said to have been
    necessary because the Crown in closing raised the question of who the real
    aggressor was.  The appellant contends that the trial judges instruction that
    it did not matter whether the appellant provoked the assault was insufficient
    in the circumstances.

[101]

I do not agree.
    The trial judge made it clear to the jury that the appellant could rely on the
    defence under s. 34(2) whether or not the appellant was the initial aggressor,
    advising the jury that it does not matter whether Mr. Krasniqi provoked the
    assault.

[102]

I would dismiss
    this ground of appeal.

Sentence Appeal

[103]

At the time of
    the murder, the appellant was prohibited from possessing a weapon by a peace
    bond and a judicial interim release order.

[104]

The prosecution
    sought a period of parole ineligibility in the range of 16 to 18 years. The
    defence asked that parole ineligibility be set in the range of 10 to 12 years.
    Five jurors recommended 15 years parole ineligibility, while three jurors
    recommended 10 years. Four jurors made no recommendation. The trial judge
    imposed a minimum period of parole ineligibility of 14 years.

[105]

The appellant
    asks this court to reduce the period of parole ineligibility given his
    background and the circumstances of provocation. The appellant does not contend
    that the trial judge committed any error in principle or misapprehended the
    evidence in setting the period of parole ineligibility at 14 years.

[106]

This court said
    in
R. v. Dooley
, 2009 ONCA 910,
249 C.C.C. (3d) 449,
at
    para. 179, that [i]t is hard, absent some error in principle or
    misapprehension of material evidence, to justify appellate intervention to
    adjust a mandatory period of parole ineligibility downward by two or three
    years. I fail to see any basis for reducing the period of parole ineligibility
    imposed by the trial judge in this case.

F.

conclusion and disposition

[107]

I would dismiss
    the appeal from conviction. I would grant leave to appeal sentence and dismiss the
    sentence appeal.

Released:
AUG
    29 2012

DD                                                  H.S.
    LaForme J.A.

I
    agree Doherty J.A.

I
    agree Paul Rouleau J.A.

[1]
The appellants statements to the U.S. Marshals were ruled
    voluntary during a pre-trial motion. No objection is taken to this ruling on
    this appeal.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Kugathasan, 2012
    ONCA 545

DATE:  20120822

DOCKET: C54161

Doherty, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Mylvaganam Kugathasan

Respondent

Matthew Asma, for the appellant

Adam Little, for the respondent

Heard and released orally: August 2, 2012

On appeal from the order of Justice Nakatsuru of the Ontario
    Court of Justice, staying proceedings against the respondent, dated July 22,
    2011.

ENDORSEMENT

[1]

The Crown appeals from the order of the trial judge staying the
    proceedings based on his finding that the respondents right to trial within a
    reasonable time, as guaranteed by s. 11(b) of the
Charter
, had been
    infringed.  The Crown contends that the trial judge erred in law in coming to
    that conclusion and advances several arguments in support of that position.

[2]

As always in s. 11(b) cases, the chronology is important and I will
    attempt to summarize it in a way that will make the issues necessary for the
    determination of this appeal apparent.

[3]

The respondent was charged with impaired driving and blowing over in
    November 2009.  He first appeared on November 18, 2009.

[4]

On February 5, 2010, trial dates were set in the Ontario Court of
    Justice for January 20, 2011.  On April 20, 2010, the parties agreed to move
    the trial date forward to November 22, 2010.

[5]

On November 9, 2010, the respondent served a notice of motion on the
    Crown. The respondent indicated that he would be bringing a motion at the
    outset of his trial for an order quashing the information on the basis that the
    appearance notice compelling his attendance was not properly confirmed.  As the
    law stood at the time, it is fair to say that the motion was an arguable one.
    The issue was unclear.  It was, however, clear that even if the motion were
    successful, nothing would stop the Crown from relaying the charge and
    proceeding with the allegation.

[6]

On November 10, 2010, the day after the Crown received the notice of
    motion, Crown counsel wrote to defence counsel indicating that if defence
    counsels motion to quash were successful, the Crown would relay the charges.
    Crown counsel also suggested that the motion to quash should be moved forward
    to some date before November 22
nd
so that if the motion were
    successful, the Crown could relay the charges and the matter could proceed to
    trial on the scheduled trial dates of November 22
nd
and 23
rd
.
    The defence was not available to argue the motion before November 22
nd
.

[7]

The motion was argued on November 22
nd
and the defence was
    successful.  The trial judge quashed the information as a nullity.  The
    respondent, on counsels instructions, left the courtroom as soon as the trial
    judge indicated that the information was a nullity.  He was not under any
    obligation to remain in the court.  The Crown indicated in court on November 22
nd
that it would relay the charges and hopefully proceed on November 23
rd
,
    the second day that had been reserved for the trial.

[8]

The Crown could not relay the charges and serve the respondent before
    November 23
rd
.  The respondent was served on November 24
th
with a process returnable on December 16, 2010.  The respondent did not appear
    on December 16
th
.

[9]

There were various appearances between December 16, 2010 and February
    18, 2011.  On February 18
th
, everybody was in court ready to set a
    date for trial.  The court offered dates in March.  Unfortunately, counsel for
    the respondent was not available.  Counsel for the respondent offered other
    dates in March, but there was no court space available on those dates.
    Ultimately, the matter got adjourned for trial to July 19, 2011.

[10]

We
    see no need to revisit the trial judges analysis as it relates to the events
    before the motion to quash on November 22, 2010.  We agree with counsel for the
    respondent that this appeal turns on whether the trial judge properly assessed
    the delay between November 22, 2010, when the first information was quashed and
    July 19, 2011, the scheduled trial date on the re-laid charges.

[11]

The
    trial judge held that the time between November 22
nd
and December 16
th
,
    about three weeks, was the responsibility of the Crown.  This was the time
    needed to relay the information and get the respondent back before the courts.
    The trial judge next determined that the almost three weeks between December 16
th
and January 5, 2011 was attributable to the respondent because he had failed to
    attend court on December 16
th
.  The trial judge further concluded
    that the time period between January 5 and February 18, 2011 should be regarded
    as neutral and part of the inherent time requirements of the case.  Most
    significantly, the trial judge concluded that the five months between the set
    date in February 2011 and the trial date in July should be characterized as
    institutional delay.

[12]

In
    reviewing the trial judges assessment of the time period between November 22,
    2010 and July 2011, we acknowledge several important points made by counsel for
    both the Crown and the respondent.  First, the Crown has the obligation to
    bring the accused to trial.  The accused has no obligation in that regard.  Second,
    nothing done by counsel in bringing the motion to quash can be criticized as
    improper.  Third, the Crowns decision to oppose the motion to quash on the
    merits and the Crowns timely advice to counsel that it would relay the charge
    if the motion were successful cannot be criticized.  Finally, in assessing
    responsibility for delay for the purposes of s. 11(b), the court does not
    distinguish between the respondent and his counsel.  Tactical decisions made by
    counsel that have an effect on the progress of the proceedings are attributable
    to the defence.

[13]

In
    our view, one has to take a practical common sense view of what was going on
    here.  Counsel for the respondent knew that if he were successful in his motion
    brought at the outset of the trial on November 22
nd
, there would be
    no trial on November 22
nd
.  Counsel also knew that if the motion were
    successful, it would not be the end of the matter and that the Crown fully
    intended to continue the litigation and had the right to do so.  Counsel also
    took steps to avoid the possibility of the trial proceeding on November 23
rd
.
    Again, this observation is not intended as a criticism of counsel, but simply
    as a  recognition that the steps taken by counsel inevitably had the result of
    avoiding a trial on November 22
nd
and November 23
rd
.

[14]

It
    seems an irresistible conclusion that the motion to quash was part of a defence
    strategy intended to avoid a trial on November 22
nd
and November 23
rd
.
    Perhaps, counsel hoped to avoid a trial altogether should the Crown conclude,
    contrary to its original position, that it would not relay the charge, or
    should the Crown be unable to get the matter back to trial before s. 11(b)
    foreclosed a trial on the merits.

[15]

The
    steps taken by the defence to bring a motion to quash the information on the
    scheduled trial date inevitably resulted in a delay of the trial for the time
    needed to reassemble the parties and, in effect, recommence the proceedings.
    In the context of the s. 11(b) calculus, the defence, like the Crown, must take
    responsibility for the delays that are the consequences of its tactical
    choices.  We stress again that the exercise is not about criticizing defence
    counsel or assigning fault.  It is about a realistic attribution of causes for
    delay in the context of considering whether the overall time period in issue is
    such as to result in a breach of the respondents rights under s. 11(b).

[16]

The
    defence tactic effectively put the process back at the starting position as of
    November 2010.  In our view, the time needed to get the parties back in the
    position they were in on November 22, 2010, that is ready for trial, should be
    attributed to the defence.  On this record, the defence was available for trial
    in March 2011.  We would characterize the period between November 2010 and
    March 2011 as defence delay.  At best, it was neutral in the sense that it was
    the time inherently required to put the proceedings back on track after the information
    was quashed.

[17]

Counsel
    for the respondent forcefully and effectively argues that even if the period
    between March and July in 2011 is the only institutional delay, that delay
    still puts this case beyond constitutional limits.  He stresses that whatever
    the explanations, this case was in the system for almost a year and one half as
    of February 2011 when the defence was prepared to set a trial date in March
    2011.  He emphasizes that this was not a complicated case.  Counsel contends
    that given the history of the case, the system had to give it priority as
    defence counsel was prepared to do, and fix a very early trial date.  He
    submits that a trial date in July was simply too far in the future.

[18]

There
    is force to these submissions.  We do not, however, agree.  First of all, the
    system was able to offer the respondent earlier trial dates.  Unfortunately,
    counsel was not available.  The fact that these dates were offered to the
    defence is some indication of attempts to set an early trial date no doubt in
    recognition of the fact that the case had been in the system for some time.  Second,
    we do not think a period of four to five months to set a trial date for a two-day
    trial is inordinate even given the prior history of the case.  Certainly, four
    to five months is not ideal.  However, s. 11(b) does not demand that the system
    operate to that standard.  We note Crown counsels observation that the trial
    date offered in February 2011 contemplated a trial delay of about half of the delay
    contemplated when the initial trial date was set in February 2010.

[19]

Having
    regard to the totality of the time period and properly attributing the reasons
    for the delay between November 2010 and March 2011 to either the defence or, as
    neutral, we are satisfied that there was no violation of s. 11(b).  The order
    staying the proceedings is set aside and the matter is remitted to the trial
    court for trial.

Doherty J.A.

David Watt J.A.

S.E. Pepall J.A.”