COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Arnaout, 2015 ONCA 655

DATE: 20150930

DOCKET: C56021

LaForme, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adel Mohamed Arnaout

Appellant

David E. Harris, for the appellant

John Neander, for the respondent

Heard: March 26, 2015

On appeal from the convictions entered on June 25, 2010,
    and from the sentence imposed on March 7, 2012 by Justice Todd Ducharme of the Superior
    Court of Justice, sitting without a jury.

By the Court:

I.        INTRODUCTION

[1]

The appellant was tried on a sixteen-count indictment comprised of eight
    counts of attempted murder for sending tampered water bottles to a number of people,
    three counts of attempted murder for sending letter bombs to three other
    people, three counts of causing an explosive device to be delivered (on the
    same facts as the letter bomb counts), and two counts of possessing an
    explosive substance.

[2]

The appellant admitted to sending the water bottles and the letter bombs.
    However, he said he did not intend to kill anyone. The trial therefore focused
    on the appellants intent.

[3]

On June 25, 2010, the trial judge gave oral reasons for judgment and convicted
    the appellant on all counts except for one of the explosive substance counts.
    The three "cause to be delivered" counts were stayed pursuant to
Kienapple.

[4]

In assessing the appellants intent on the water bottle charges, the
    trial judge originally concluded that the appellant had put Ricin  a deadly
    poison  in the bottles. Seventeen months after conviction, during dangerous
    offender proceedings, the trial judge advised counsel that he had decided to
    clarify his reasons by amending them to add the alternative finding that the appellant
tried but failed to put
Ricin in the water bottles. The trial judge
    explained to somewhat surprised counsel that he had made the alternative
    finding in his mind when he gave his reasons for conviction, but, by
    inadvertence, did not express it in those reasons.

[5]

The trial judge ultimately declared the appellant a dangerous offender and
    sentenced him to an indeterminate period of imprisonment.

[6]

While the appellant raises a number of grounds of appeal, he argues with
    greatest emphasis that the trial judges presumption of integrity has been
    rebutted. The appellant says that the trial judge, by adding an alternative
    theory of liability in relation to the water bottle charges, after the fact,
    created the impression that he had departed from independence and impartiality.
    That impression, according to the appellant, rebuts the presumption of
    integrity and contaminates the trial process to such an extent that this court
    must set aside the convictions and order a new trial.

[7]

We agree that the presumption of integrity has been rebutted. However,
    for the reasons that follow, we conclude that the only consequence is to
    eliminate the trial judges subsequent alternative finding from the reasons
    relevant on appeal. We therefore assess the other grounds of appeal on the basis
    of the original reasons alone. On those original reasons, we conclude that the
    trial judges convictions on the counts of attempted murder by tampered water
    bottles should be set aside and acquittals substituted on those counts. We hold
    that the convictions of attempted murder by letter bomb are unimpeachable, and
    so dismiss the appeal on those counts. Finally, we order a new sentencing
    proceeding before a different judge.

II.       BACKGROUND

[8]

In 2004, the appellant sent twelve-packs of tainted water bottles to
    four parties. The appellant had had difficulties with each party.

[9]

The appellant admitted that he had poked holes in the caps of the
    bottles and contaminated the bottles with dimethyl sulfoxide (DMSO), a substance
    that aids the absorption of other substances and can irritate the digestive
    system. He sent the packages with a fake promotional letter from Nestlé
    Waters. The letter asked the recipient to distribute the free bottles to
    employees but to give no more than one per employee. Only four people tasted the
    cloudy and smelly water. None of those people fell ill.

[10]

A
    search of the appellants hard drive revealed extensive research into poisons,
    including Ricin. Ricin is lethal in very small doses. The computer search
    indicated that the appellant had calculated how he might produce Ricin and how
    he might distribute it in coffee.

[11]

A
    test exists to detect Ricin. The Centre of Forensic Sciences, however, did not
    have the capacity to perform that test, and so the water bottles were not
    tested for Ricin. A search did not reveal any trace of Ricin or any evidence of
    its production in any place connected to the appellant.

[12]

The
    appellant also admitted that he sent letter bombs to three people: (i) a former
    roommate with whom he did not get along; (ii) the defence counsel who had
    defended him against a 2003 criminal harassment charge; and (iii) a
    superintendent of a property the appellant had rented.

[13]

The
    letter bombs were of similar construction: copper tubes filled with an
    explosive substance, held in a package with steel nails and, in two cases,
    flammable liquid. The former roommates bomb exploded in his hands, causing
    minor injuries. The other two recipients called the police upon noticing
    something unusual about their letters. The police disarmed one bomb and
    detonated the other. Around the same time as he sent the letter bombs, the
    appellant was writing notes on his typewriter threatening death.

[14]

After
    a two-week trial, on June 25, 2010, the trial judge issued reasons for judgment
    and found the appellant guilty of all counts except for the explosive substance
    counts for items in his home. The three "cause to be delivered"
    counts were stayed pursuant to
Kienapple.
On March 7, 2012, the trial
    judge issued reasons for sentence. He declared the appellant a dangerous
    offender and imposed an indeterminate period of detention.

III.      ISSUES

[15]

The
    appellant raises four grounds of appeal. He submits that the trial judge erred
    by:

1.       Creating an appearance of partiality in
    amending his reasons more than 17 months after conviction. The amendment and
    the circumstances surrounding the amendment rebut the presumption of integrity.

2.       Unreasonably finding that the appellant intended to
    kill by sending the tainted water.

3.       Unreasonably finding that the appellant intended to
    kill by sending the letter bombs.

4.       Unreasonably declaring the appellant to be a dangerous
    offender and unreasonably imposing an indeterminate sentence.

[16]

As
    noted earlier and as we explain below, the appeal is allowed in part. We allow
    the appeal on the attempted murder by tampered water convictions and substitute
    acquittals on those counts. We dismiss the appeal on the attempted murder by
    letter bomb convictions. And finally, because we substitute acquittals on eight
    of the attempted murder counts, we order a new sentencing proceeding.

IV.     ANALYSIS

[17]

In
    oral argument, the appellant asserted that the appearance of impartiality was
    lost when the trial judge amended his original reasons. If the presumption of
    integrity was rebutted, the appellant argues, this court should set aside all
    of the trial judges decisions and order a new trial. We will address this
    issue first and then turn to the reasonableness of the verdicts and the
    sentence.

(i)

The Presumption of Integrity

[18]

In
R. v. Teskey
, 2007 SCC 25, [2007] 2 S.C.R. 267, at paras. 19-21, the
    Supreme Court held that judges benefit from a presumption of integrity. The
    presumption of integrity encompasses the expectation that judges will strive to
    overcome personal bias and partiality and will carry out the oath of their
    office to the best of their ability. An adjudicator is impartial when he
    or she is disinterested in the outcome and is open to persuasion by the
    evidence and the submissions. A judge must both weigh the case impartially in his
    or her own mind and ensure that the circumstances objectively demonstrate his
    or her impartiality to an informed and reasonable observer.

[19]

The
    test to displace the presumption of integrity is similar to the test to show a
    reasonable apprehension of bias. Bias, partiality and lack of integrity are all
    similar concepts; the bar to establish any one of them is high because each
    calls into question both the integrity of the presiding judge and the
    administration of justice itself:
Teskey
, at para. 32. To rebut the
    presumption of integrity in cases featuring post-decision reasons, the
    appellant must present cogent evidence showing that, in all the
    circumstances, an informed and reasonable observer would think that the
    reasons are an after‑the-fact justification for the decision rather than
    an articulation of the reasoning that led to the decision:
Teskey
,
at para. 21.

[20]

In
Teskey
, the trial judge announced a decision with reasons to follow
    but did not provide reasons until 11 months later. In
R. v. Cunningham
,
    2011 ONCA 543, 106 O.R (3d) 641, on which the appellant also relies, the trial
    judge delayed 25 months between her decision and her reasons. The question in
    those cases was whether an informed and reasonable observer would believe the
    reasons as a whole were an after-the-fact justification for a decision
    announced months or years earlier.

[21]

This
    case fits only inexactly into that frame. Here, the trial judge gave lengthy
    reasons when he convicted the appellant. He added only a few words when he
    amended his reasons over 17 months later. Nevertheless, we can see no
    principled reason why the test set out in
Teskey
and
Cunningham
should not apply.

[22]

Whether dealing with reasons released in
    their entirety after a lengthy delay or an amendment to previously delivered
    reasons, an appellate court must determine whether the trial judges
    explanation for why he reached a particular conclusion constitutes an
    after-the-fact justification rather than an articulation of the reasoning that
    led to the decision.

[23]

Therefore,
    if a judge amends his or her reasons, the test is whether the appellant has
    presented cogent evidence showing that, in all the circumstances, an informed
    and reasonable observer would think that
the amendment
was an
    after-the-fact justification for the verdict.

(a)     Factual background

[24]

In
    his oral reasons of June 25, 2010, the trial judge noted that the appellants
    intention in the tainted water counts turned on the chemical with which he
    injected the water bottles. The Crowns theory was that the appellant injected
    DMSO to facilitate Ricin absorption. The trial judge described the relevant
    findings that he said allowed him to properly infer that [the appellant] put
    Ricin in the water bottles:

1)

I
    accept Mr. Arnaouts testimony that he mixed DMSO into the water although I
    reject his explanation for why he did so.

2)

There
    does not appear to be any accepted reason for DMSO to be administered orally in
    liquid form.

3)

DMSO,
    the chemical substance that Mr. Arnaout had said he put in the bottles, would
    facilitate the absorption of Ricin or other chemicals in the water into the
    skin or internal membranes of any person drinking the water. Thus, the DMSO
    would decrease the amount of Ricin necessary to poison a person drinking the
    water.

4)

Mr.
    Arnaout had a strong grudge against the named recipients of the water bottles
    as well as against the CIBC [one of the recipients].

5)

Around
    the time of the sending of the water bottles, Mr. Arnaout had done research
    with respect to the manufacture of Ricin.

6)

At
    the same time, Mr. Arnaout had done calculations with respect to a plan to
    distribute Ricin mixed into coffee, to various targets.

7)

The
    water bottles were not tested for the presence of Ricin, so there is no
    evidence before me as to whether or not it was present in the water.

8)

The
    search of Mr. Arnaout, his rental vehicle and his apartment revealed no trace
    of Ricin or of castor beans, one of the principal ingredients for its
    manufacture. Of course, these searches were conducted some three years after
    the water bottle incidents.

9)

Ricin
    is a highly toxic poison. In terms of its toxicity, Dr. Langille said it was in
    the same ball park as mustard gas, sarin, chlorine gas and cyanide.

10)

The receptionist
    at [one of the recipients] had a taste out of one of the water bottles and,
    although taken to hospital, she apparently suffered no ill effects. Of the
    three employees at the CIBC who tasted the water one reported feeling sick but
    did not miss any work as a result. There is no evidence before me that either
    of the other two CIBC employees suffered any ill effects.

[25]

The
    trial judge concluded that the first three findings supported the inference
    that the appellant added DMSO to the water to facilitate absorption of another
    chemical in the water. The appellants animus toward the recipients of the
    water bottles suggested that the second chemical was harmful, especially given
    the appellants tendency to blow out of proportion alleged wrongs against him.
    The appellants research into Ricin indicated that he selected Ricin as the
    harmful second chemical.

[26]

The
    trial judge realized that if the appellant contaminated the water with Ricin, a
    highly toxic substance, anyone who drank the water probably should have
    suffered ill effects. Those who drank the water did not suffer ill effects. The
    trial judge reasoned, however, that those who drank the water likely ingested
    only a small quantity given its sulfurous smell and taste. He concluded that
    the appellant put Ricin in the tainted water, and having so concluded, found
    that the appellant had the necessary
mens rea
for attempted murder.
    That is, he intended to kill those persons to whom he sent the bottles.

[27]

On
    December 12, 2011, during the sentencing proceedings, the trial judge advised
    counsel that he had reviewed a transcript of the reasons for conviction that
    counsel had given him that morning. He indicated that he had not previously had
    a copy of the reasons and said:

[The reasons] dont fully reflect one aspect of my reasoning ...
    just so the record is clear, I am going to clarify that one point. It has to do
    with respect to the tainted water charges The issue relates to the conclusion
    that Mr. Arnaout put Ricin in the water bottles he sent. My basis for
    convicting him was that he either did so
or he intended
    to do so and failed in the attempt
. My oral reasons did not make that
    clear. [Emphasis added.]

[28]

The
    trial judge said both findings supported his conclusion that the appellant
    intended to kill by sending the water bottles. He said the omission was either
    his mistake or the court staffs mistake. He stated that he retained the
    flexibility to make this correction because he was still seized of the
    matter. Indeed, he said it was both appropriate and essential to make the
    correction.

[29]

Counsel
    had been not forewarned of the trial judges intention to amend his reasons. After
    the trial judge reviewed the portions of his reasons that he had amended, the
    appellants trial counsel  who was not counsel on appeal  expressed surprise,
    noted that his client had appealed and said, I think it would be correct for
    me to say that what happened this morning would have some impact on grounds
    that have been stated in that appeal and ... may have some impact on [the
    appellants] rights to appeal. Trial counsel added that a doctors report
    filed on sentencing had made reference to the fact that the decision had been
    appealed. The trial judge responded that he had expected an appeal, that he did
    not know the grounds of appeal, and that the fact of the appeal had no impact
    on his decision to correct his reasons.

[30]

The
    trial judge made approximately five changes to his original reasons to add the
    alternative finding that the appellant tried but failed to put Ricin in the
    water.

(b)     Would a
    reasonable person think that the amendment was an                            after-the-fact
    justification for the convictions?

[31]

At
    the outset, we think it important to restate that trial judges may announce a decision
    with reasons to follow. This court may consider a trial judges reasons even
    if the trial judge releases those reasons after the appellant has filed a
    notice of appeal:
Teskey
, at para. 16.

[32]

As
Teskey
explained, at para. 17, efficiency often requires a trial judge
    to immediately announce a decision on an evidentiary ruling or on a
Charter
motion with reasons to follow at a later date. Other good reasons, such as
    providing immediate release on an acquittal, may prompt a trial judge to
    announce a verdict with reasons to follow. However, in all cases, the
    trial judge should keep in mind that justice must not only be done but also
    must appear to be done.

[33]

A
    long delay between a decision and reasons may cause an informed and reasonable
    observer to believe that the trial judge, instead of considering the evidence
    with an open mind, reasoned in a manner designed to reach the result previously
    announced. That is, the reasonable observer may believe that the trial judge
    reasoned with a view to defending the decision rather than arriving at it, even
    if only subconsciously:
Teskey
, at para. 18.

[34]

The
    appellant contends that the trial judge reread his reasons for conviction and
    realized the evidence did not support his finding that the appellant put Ricin
    in the water. The trial judge, he says, then tried to repair his reasons by
    adding the new, alternative finding of fact that the appellant tried but failed
    to put Ricin in the water. The appellant asserts that the trial judge attempted
    to bolster his reasons for conviction with an alternative theory of liability.

[35]

By
    adding an alternative theory long after giving his reasons, the appellant
    argues, the trial judge became an advocate for conviction rather than an
    independent arbiter. The appellant submits that an informed and reasonable
    observer would think the trial judge reasoned to justify his result, rather
    than to come to a result. Such results-driven reasoning, he says, casts doubt
    on the entire trial.

[36]

The
    trial judge told counsel that his original reasons did not fully reflect one
    aspect of [his original] reasoning, in that they omitted the finding that the
    appellant either [put Ricin in the water] or intended to do so and failed in
    the attempt. Would an informed and reasonable observer accept the trial
    judges explanation? Or, would an informed and reasonable observer view the
    amendment as an after-the-fact justification for the verdict? We conclude an
    informed and reasonable observer would view the amendment as an after-the-fact
    justification for the verdict.

[37]

Several
    features of this case convince us that an informed and reasonable observer
    would not see the amendment as reflective of the actual reasoning path taken to
    the decision announced over 17 months earlier. They are: (i) the weakness of
    the evidence supporting attempted murder on the tainted water charges, (ii) the
    trial judge's expectation that the appellant had launched an appeal, and (iii) the
    length of time between the release of the original reasons and the amendment.

[38]

First,
    the amendment strengthened the weakest link in the trial judges chain of
    reasoning. In his original reasons, the trial judge found that four people
    drank water containing an extremely poisonous substance without suffering any
    real effects. This seeming incongruity is very hard to square. The curative
    nature of the amendment suggests that the trial judge was attempting to preserve
    his reasons by correcting an oversight he did not fully realize at the time.

[39]

The
    trial judges second specific change to his original reasons supports that
    conclusion. In his original reasons, after finding that the appellant added
    Ricin to the water, the trial judge stated:

I am somewhat  troubled by the fact that none of the persons
    who tasted the water suffered any negative consequences from tasting it.
    However, given the evidence about the unpleasant odour of the water and Dr.
    Langilles evidence that the smell and the taste of water would deter people
    from drinking much of this, I find that none of the people would have drank
    much of the water at all. While I have no direct evidence about the amount of
    water the CIBC employees ingested, Mr. Zaidi testified the receptionist had
    only a little slight taste of it.

[40]

In
    his second of five specific changes to the original reasons, the trial judge
    added the following to the end of the above passage:

I also am unable to determine if Mr. Arnaout was successful in
    manufacturing the Ricin and, if so, at what concentration.

[41]

In
    the original passage, the trial judge turned his mind to the exact problem his
    amendment fixed. In the original passage, he was trying to explain how people
    could drink Ricin-contaminated water without ill effects. His amendment did
    away with that difficulty by finding that perhaps the appellant did not successfully
    add Ricin after all. Given the close relationship between the problem and the
    amendment, it becomes difficult to accept that the trial judge always found
    that the appellant put or tried but failed to put Ricin in the water. If the
    trial judge thought the appellant put
or
tried but
    failed to put Ricin in the water, he would have said so in his original reasons
    in order to explain an inconsistency that troubled him.

[42]

Based
    on the number of specific changes to the reasons, and in particular the change
    to the passage above, we believe an informed and reasonable observer would
    conclude that the trial judge was not persuaded that the evidence supported the
    conclusion that the appellant tried but failed to add Ricin to the water when
    he wrote his original reasons. An informed and reasonable observer would view the
    amendment introduced in these circumstances as an after-the-fact justification
    for the verdict, even if unintended.

[43]

Second,
    as previously mentioned, immediately after the trial judge reviewed his
    amendments with counsel, the appellants trial counsel noted that his client
    had appealed his convictions. Defence counsel also noted that a psychiatric
    report filed in the dangerous offender proceedings had made reference to the
    appeal.

[44]

If
    an appeal from a verdict has been filed, subsequently released reasons or
    amendments that deal with issues raised on appeal could create the appearance
    whether real or not  that the trial judge is advocating a particular verdict
    rather than articulating the reasons that led him or her to the verdict:
Teskey
,
    at para. 18.

[45]

In
    this case, the trial judge said that although he expected an appeal, he had not
    read the notice of appeal and did not know the grounds of appeal. The appellant
    does not allege otherwise.

[46]

The
    mere fact that the trial judge expected that an appeal had been filed when he
    delivered his amendments does not mean the amendments signal partiality. Trial
    judges frequently release decisions with reasons to follow, and those decisions
    do not fail simply because a trial judge learns of an appeal before releasing his
    or her reasons. As with other considerations, the existence of an appeal and
    the trial judge's knowledge of that appeal are but factors to take into account:
Cunningham
, at para. 47. Here, the ultimate question remains whether
    an informed and reasonable observer would believe that the amendments are an
    after-the-fact justification for the verdicts rather than the articulation of
    the reasoning that led to the verdicts.

[47]

In
    our view, an informed and reasonable observer would, on this record, see the
    amendments delivered by the trial judge as motivated, at least in part, by the
    desire to defend his decision against the likely challenges on appeal.

[48]

While
    the trial judge may not have known the particulars of the appellants notice of
    appeal, the amendments to his original reasons were specifically directed at what
    was arguably the appellants strongest ground of appeal. Without the trial
    judges addition of an alternative theory of liability, the appellant would
    have had an argument that the trial judges finding of guilt on the tainted
    water attempted murder charges was made in error and on the basis of an
    erroneous factual finding; namely, that the appellant added Ricin to the water
    bottles. This, combined with the fact that the trial judge expected an appeal
    and was put on notice of the impending appeal by the psychiatric report filed
    in relation to the dangerous offender proceedings, created the appearance that
    the trial judge was attempting to defend his verdict against the primary
    challenge on appeal.

[49]

Whether
    this was actually the trial judges intention or not, a judge who releases
    post-verdict reasons after a lengthy delay must always be mindful of the
    importance that justice not only be done, but that it
appear
to be
    done:
Teskey
, at para. 17.

[50]

Third,
    the longer the passage of time between a decision and the reasons for the
    decision, or substantive amendments to those reasons, the greater the concern
    that the requisite link between the two does not exist:
Cunningham
, at
    para. 37. More than 17 months to deliver amendments of this significance, said
    to have been conceived in the original reasoning process, is a long time  certainly
    longer than the 11-month delay in
Teskey
.

[51]

The
    trial judge offered little explanation as to why he only amended his reasons at
    the sentencing hearing, more than 17 months after delivering his verdict other
    than to say he did not know how a transcript of his oral reasons went out to
    counsel without his having a chance to review it or perhaps he did have a
    chance to review it but did not.

[52]

It
    is of significance that during these 17 months, there were numerous appearances
    before the trial judge in connection with the dangerous offender proceedings. It
    was in the course of these appearances that the doctors report in which the
    appeal was mentioned, was filed. A reasonable, informed observer would likely believe
    that these ongoing proceedings created ample opportunity for the trial judge to
    review and consider  or reconsider  his oral reasons during this 17-month
    period.

[53]

The
    appellant, in our view, has presented cogent evidence showing that, in all the
    circumstances, an informed and reasonable observer would think the amendments were
    an after-the-fact justification for the verdict. The appellant has rebutted the
    presumption of integrity.

(c)     Must there be a new trial on all the
    issues?

[54]

The
    appellant asserts that if he rebuts the presumption of integrity, this court
    should set aside all of the trial judges decisions and order a new trial on
    all counts. In the circumstances of this case, however, the rebuttal of the
    presumption has limited consequences.

[55]

In
Teskey
, the court found that an informed and reasonable observer would
    think that the post-verdict reasons were an after-the-fact justification for
    the verdict. The court, therefore, could not consider the post-decision reasons
    in assessing the sufficiency of the reasons for the verdict. As the original
    reasons did not pass the sufficiency of reasons test, the court ordered a new
    trial:
Teskey
, at para. 2. Thus, if a trial judge issues reasons after
    a decision, and an informed and reasonable observer would understand the
    reasons as an after-the-fact justification for the decision, an appellate court
    cannot consider the post-decision reasons in assessing any ground of appeal.

[56]

It
    is important to appreciate that the court in
Teskey
did not allow the
    appeal simply because the post-verdict reasons appeared to be an after-the-fact
    justification for the verdict. Rather, the court allowed the appeal because the
    reasons remaining, after it excluded the post-verdict reasons, were
    insufficient. In
R. v. Thompson
, 2010 ONCA 463, 256 C.C.C. (3d) 51, at
    para. 26, this court excluded supplementary reasons in which the sentencing
    judge admitted a mistake in his original reasons and attempted to fix the
    mistake. This court went on to consider only the sentencing judges original
    reasons. The court dismissed the appeal after finding that the original reasons
    disclosed no significant error:
Thompson
, at paras. 35, 41.

[57]

Teskey
and
Thompson
make clear that an appellate court should exclude only
    that portion of the trial judges reasons that appears, to an informed and reasonable
    observer, to be an after-the-fact justification for the decision. The court
    should then decide whether the remaining reasons withstand the appellants
    other grounds of appeal: see also
Cunningham
, at para. 2;
R. v.
    Port Chevrolet Oldsmobile Ltd.
, 2009 BCCA 357, 246 C.C.C. (3d) 355, at
    para. 51.

[58]

The
    appellant, however, argues that if the presumption of integrity has been
    rebutted in the circumstances here, this court must set aside all of the
    decisions below. The appellant says that this court, once it determines that
    the trial judges amendment rebutted the presumption of integrity, cannot
    safely conclude that the trial judge acted impartially at any point.

[59]

We
    decline to accede to the appellants suggestion. This court should not lightly
    infer partiality in a judge. As repeatedly stated in our jurisprudence, the
    threshold for a successful allegation of partiality or the appearance of
    partiality is high. It can be met only with cogent evidence: see
R. v.
    R.D.S.
, [1997] 3 S.C.R. 484, at para. 117, Cory J.

[60]

In
    our view, the pre-amendment proceedings disclose no reason to doubt that the
    trial judge drafted his original reasons and came to his verdicts with an
    impartial mind. His lengthy original reasons reveal a careful contemplation of
    the evidence and an appreciation for the Crowns heavy burden. The fact that he
    introduced an amendment 17 months later is not cogent evidence of partiality in
    writing the original reasons. The impugned amendment should not impact the
    presumption that the trial judge acted as a judge should in deciding the case
    as set out in his original reasons. There is no evidence to support the notion
    that the trial judge acted with something less than integrity and impartiality
    in articulating his original reasons.

[61]

Therefore,
    the amendments should be excised and the other grounds of appeal against conviction
    should be considered on the basis of the trial judges original reasons.

(ii)

Reasonableness of the Verdicts

[62]

The
    test to determine whether a verdict is reasonable is well established. A reasonable
    verdict is one a properly instructed jury, acting judicially, could reasonably
    have rendered. The reviewing court may set aside a verdict as unreasonable when
    the reasons of the trial judge reveal that he or she entered a verdict
    inconsistent with his or her factual conclusions:
R. v. Biniaris
, 2000
    SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37.

[63]

As
    noted earlier, we conclude that the tainted water attempted murder convictions
    are unreasonable while the letter bomb convictions are not. We will discuss
    each of these in turn.

(a)     Contaminated water bottles

[64]

The
    issue on these counts was whether the appellant possessed the requisite
mens
    rea
for attempted murder; namely, the specific intent to kill. The trial
    judge described his conclusion as follows:

Having concluded that Mr. Arnaout put Ricin in the tainted
    water, I can readily conclude that he had the necessary
mens rea
for attempted
    murder. That is, he intended to kill those persons to whom he sent the bottles.

[65]

With
    respect, the trial judges finding that the appellant put Ricin in the water
    requires a leap that the evidence does not support. The evidence only
    demonstrates that the appellant (i) did not like the recipients of the water, (ii)
    was researching Ricin (among other poisons), and (iii) contaminated the water
    with DMSO.

[66]

To
    be sure, the appellants research into and calculations on Ricin, especially in
    combination with his list of targets, are disturbing. The research, however, is
    the only connection to Ricin. The water was not tested for Ricin and Ricin was
    not found on the appellants person, in his rental car, or in his apartment. No
    one fell ill with Ricin poisoning after drinking the water.

[67]

The
    trial judge's observation that the people who drank the water probably only
    drank small amounts of Ricin does not explain why those people did not fall
    sick. The expert evidence was that a minuscule amount of Ricin  about one
    milligram per kilogram of body weight  would likely kill if taken orally.

[68]

In
    our view, the fact that the appellant seemed to seriously consider poisoning
    people with Ricin is weak evidence that he contaminated these particular water
    bottles with Ricin. Without more, a reasonable jury properly instructed could
    not conclude that the appellant attempted to kill the water recipients by
    contaminating the water with Ricin. Other explanations for the evidence lay
    open. For example, perhaps the appellant considered distributing Ricin through
    the water bottles but, in actually preparing the bottles, decided only to
    harass the recipients with DMSO.

[69]

As
    a result, we set aside the eight convictions for attempted murder related to
    tainted water.

(b)     Administering a noxious thing

[70]

After
    finding that the appellant put Ricin in the water, the trial judge considered
    whether the appellant should be found guilty of an included offence if he was
    wrong about putting Ricin in the water. He then decided that the appellants attempted
    murder charges contained sufficient descriptive words to include the offences
    of administering and attempting to administer a noxious thing.

[71]

We
    disagree. While there was evidence that the trial judge could rely on to
    convict the appellant of the offences of administering and attempting to
    administer a noxious thing, the charges as particularized do not contain
    sufficient descriptive words to include these offences.

[72]

The
    trial judge accepted the appellants evidence that he added DMSO to the water
    bottles. The Centre of Forensic Sciences found dimethyl sulfide (DMS) of
    unknown concentration in the bottles. The toxicologist from the Centre of
    Forensic Sciences testified that most people, if they ingested DMS, would not
    feel any effect. He agreed that DMS was not injurious and at best only
    slightly toxic. However, he also testified that DMSO, if taken orally would
    irritate the membranes of the mouth, esophagus and gastrointestinal tract,
    depending on the amount taken. Based on this, the trial judge found there was
    evidence that could support convictions of the included offences.

[73]

We
    turn then to the charges as particularized.

[74]

The
    trial judge relied on
R. v. G.R
., 2005 SCC 45, [2005] 2 S.C.R. 371, to
    hold that administering and attempting to administer a noxious thing were
    included offences on the attempted murder charges. In
G.R.
, at para.
    29, the court noted that s. 662 of the
Criminal Code
, R.S.C. 1985, c.
    C-46, authorizes convictions for only three categories of included offences:

1.       offences included by statute,

2.       offences included in the
    enactment creating the offence charged,

3.       offences which become included
    by the addition of apt words of description to the principal charge.

[75]

The
    trial judge correctly noted that the appellant could only be convicted of
    administering or attempting to administer a noxious thing if those offences fit
    under the third category. He quoted the test for this category as follows: [w]hat
    is required are words of description in the count itself of facts which put an
    accused on notice that, if proven, such facts taken together with the elements
    of the charge, disclose the commission of an included offence:
G.R.
,
    at para. 32.

[76]

A
    count includes a lesser offence if, by proving the elements of the charged
    offence and the facts alleged in the count, the Crown
necessarily
proves the lesser offence.
G.R.
, at para. 25, emphasizes the narrow
    ambit of included offences:

An offence is included if its elements are embraced in the
    offence charged (as described in the enactment creating it or as charged in the
    count) or if it is expressly stated to be an included offence in the
Criminal
    Code
itself. The test is strict. It must "necessarily" be
    included. [Citation omitted.]

See also
R. v. Beyo
(2000), 47 O.R. (3d) 712
    (C.A.), at para. 30, leave to appeal refused, [2000] 2 S.C.R. vi;
R. v.
    Simpson
(1981), 58 C.C.C. (2d) 122 (Ont. C.A.), at p. 136, leave to appeal
    refused, [1981] 1 S.C.R. xiii.

[77]

The
    tainted water attempted murder charges all follow one of two wordings:

ADEL MOHAMED ARNAOUT stands further charged that he, on or
    about the 22nd day of July in the year 2004, in the City of Toronto, in the
    Toronto Region, did attempt to murder Saroor Hasan ZAIDI
by
    sending Saroor Hasan ZAIDI tampered bottled water
, contrary to section
    239 of the
Criminal Code
.

ADEL MOHAMED ARNAOUT stands further charged that he, on or
    about the 22nd day of July in the year 2004, in the City of Toronto, in the
    Toronto Region, did attempt to murder John DOE
by causing
    John DOE to receive tampered bottled water
, contrary to section 239 of
    the
Criminal Code
. [Emphasis added.]

[78]

In
    our view, the charges as particularized do not include either administering a
    noxious thing or attempting to administer a noxious thing. For the offence of
    administering a noxious thing, s. 245 of the
Criminal Code
requires
    that a person administer or cause to be administered  or causes any person to
    take poison or any other destructive or noxious thing.

[79]

The
    appellant could not be convicted of administering a noxious thing in these
    circumstances unless someone actually drank the water. The charges do not
    allege that anyone actually drank the water. The charges therefore do not
    necessarily put the appellant on notice that he could be convicted of
    administering a noxious thing, and so the charges do not include this offence.

[80]

The
    appellant could not be convicted of attempting to administer a noxious thing
    unless he added a noxious thing to the bottled water. The charges specify
    tampered bottled water as the means by which the appellant attempted to kill.
    Tampering with a bottle of water in an attempt to kill could mean poisoning the
    water with a noxious thing, but it could also mean rigging the bottle to
    explode or otherwise modifying the bottle to cause harm. A charge alleging
    attempted murder by tampered bottled water does not necessarily allege that the
    accused person tainted the bottled water with a noxious thing. The charges
    therefore do not put the appellant on notice that he could be convicted of
    attempting to administer a noxious thing and the charges do not include this
    offence.

[81]

As
    the charges do not include administering or attempting to administer a noxious
    thing, we cannot enter convictions on those offences in place of the vacated
    attempted murder by tainted water convictions. We therefore set aside the
    convictions and enter acquittals on these counts.

(c)     Letter bombs

[82]

Here
    the appellant argues that the convictions for attempted murder by letter bomb
    are unreasonable. He offers two arguments. First, he says the one bomb that did
    go off did not cause serious injury despite exploding in the victims hands.
    Second, he says the size of the bombs made it extremely unlikely that they
    could kill anyone.

[83]

The
    evidence on the letter bomb counts is overwhelming and not in the least bit
    weakened by the mere size of the bombs. The appellant fastened shrapnel nails
    to all three of the bombs and incorporated flammable liquid into two of them.
    In all cases, the trial judge found that the appellant harboured animus against
    the targets.

[84]

It
    is clear to us that a properly instructed jury acting judicially on all the
    evidence could infer that the appellant intended to kill the people to whom he
    sent the letter bombs. The trial judges verdicts on the letter bomb counts are
    reasonable and this ground of appeal is dismissed.

(iii)

The Sentence Appeal

[85]

Having
    vacated the attempted murder convictions on the water bottle counts, the
    premise on which the appellant was found to be a dangerous offender and sentenced
    to a period of indeterminate duration has changed appreciably.

[86]

In
    the circumstances, we must also set aside the trial judges declaration that
    the appellant is a dangerous offender and his imposition of an indeterminate
    period in custody. We order that the dangerous offender proceedings be heard by
    a different judge.

V.      DISPOSITION

[87]

The
    appeal is allowed in part. We allow the appeal on the eight attempted murder
    convictions related to tainted water, set aside the convictions and enter
    acquittals on those counts. We dismiss the appeal against the three convictions
    for attempted murder by letter bomb. Finally, we order a new dangerous offender
    hearing before a different judge.

Released:

HL                                                   H.S.
    LaForme J.A.

SEPT 30 2015                                  David
    Watt J.A.

Gloria Epstein J.A.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. B.H.,
    2015 ONCA 642

DATE: 20150923

DOCKET: C59187

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.H.

Appellant

Robert Sheppard, for the appellant

Kevin Rawluk, for the respondent

Heard: September 14, 2015

On appeal from the conviction entered on January 24, 2014
    by Justice Ian F. Leach of the Superior Court of Justice, sitting with a jury,
    and the sentence imposed by Justice Ian F. Leach on July 25, 2014.

Epstein J.A.:

[1]

The appellant was charged with two counts of gross indecency arising out
    of complaints made by his nephew, A.G.  The events forming the basis of the charges
    took place in 1973, when the appellant was eighteen and A.G. was nine or ten
    years of age.

[2]

A.G. testified that, on two occasions, the appellant made him perform
    oral sex in return for permission to use the pool table in the appellants
    home. The first charge related to a brief encounter that took place in the
    backroom of the appellants home, where A.G. said the pool table was then
    located.  According to A.G., on that occasion the appellant did not ejaculate
    and A.G. played pool afterwards. The second charge related to an incident in
    the appellants bedroom.  This time the appellant ejaculated. A.G. thought the
    appellant had peed in his mouth and ran home without playing pool.

[3]

The appellant testified, denying that he sexually abused A.G.  He took
    the position that A.G. fabricated the abuse because the appellants mother had
    died, leaving valuable property to the appellant.

[4]

A.G. reported the incidents to the police in 2012.

[5]

Following a trial with a judge and jury, in which credibility was the
    key issue, the appellant was acquitted on the first count and convicted on the second.
    The trial judge sentenced the appellant to an 18-month conditional sentence on
    terms proposed by defence counsel.  The terms included strict house arrest.

THE ISSUES

[6]

The appellant appeals his conviction and sentence. He advances two
    arguments with respect to his conviction appeal.

[7]

First, the appellant submits that the trial judge erred by failing to
    instruct the jury that A.G.s entire testimony could be taken into account in
    assessing his credibility in relation to each count.  Because of this error,
    the appellant says, the verdicts the jury rendered are inconsistent.

[8]

The second ground of appeal arises out of the appellants theory about
    why A.G. fabricated the complaints against him. The appellant submits that the
    trial judge erred by failing to instruct the jury that, even if it rejected the
    appellants theory, it had to consider whether he may have been honestly
    mistaken about A.G.s motive to fabricate.   And, if the jury concluded that
    the appellant was, in fact, honestly mistaken, then it should not use the
    appellants evidence on this issue as adversely affecting its assessment of his
    credibility.

[9]

On sentence, the appellant seeks to vary the terms of his conditional
    sentence.

CONVICTION APPEAL

1.

Are the verdicts reconcilable?

[10]

The
    appellant argues that the incidents alleged in both counts were virtually
    identical. There was no corroboration of either incident  the jurys verdict
    inevitably rested on its assessment of A.G.s credibility.  The jurys verdict
    of not guilty on count 1 can only be interpreted as a finding that A.G.s
    evidence was not credible, making this verdict irreconcilable with the verdict
    of guilty on count 2, which required a finding that A.G.s evidence was
    credible.

[11]

In
    support of this argument, the appellant submits that the trial judge erred by
    failing to instruct the jury that  its credibility findings in relation to A.G.
    on one count could be considered in its determination whether the Crown had
    proven its case in relation to the other count.  This error, the appellant
    argues, could have led to the inconsistency in the verdicts.

[12]

I
    disagree with both parts of the appellants argument relating to this issue.

Did the trial judge err in
    instructing the jury?

[13]

First,
    I find no fault with the trial judges instructions.

[14]

The
    trial judge correctly instructed the jury to consider each charge separately
    and notably told them that their verdicts on the two counts did not have to be
    the same.

[15]

Nothing
    in the instructions suggested that the jury should compartmentalize its
    credibility findings.  Significantly, nothing the trial judge said led the jury
    to believe that it could not apply its general credibility findings about A.G.
    to both counts.

[16]

In
    fact, in the following passage in his charge, the trial judge focused on the
    need for an overall assessment of the credibility of the witnesses:

I emphasize you do not decide whether something happened simply
    by comparing one version of events with another and choosing one of them. You
    have to consider all of the evidence and decide whether youve been satisfied
    beyond a reasonable doubt that the events that form the basis of the crimes
    charged in fact took place.

[17]

Moreover,
    the jury was repeatedly instructed to use its common sense in its determination
    of the verdicts.  As a matter of common sense, an assessment of the overall
    credibility of a witnesss evidence is inevitably influenced by the totality of
    the evidence:
R. v. Rojas
, 2008 SCC 56, [2008] 3 S.C.R. 111, at para.
    25.

[18]

Finally,
    I note that the trial judge provided trial counsel with a draft of the jury
    charge and no objection was made before or after it was delivered.

Were the verdicts inconsistent?

[19]

The
    standard of review applied to jury verdicts is whether the verdict could
    reasonably have been rendered by a properly instructed jury acting judicially:
    [I]n deciding whether the verdict is one which a properly instructed jury
    could reasonably have rendered, the reviewing court must ask not only whether
    there is evidence in the record to support the verdict, but also whether the
    jurys conclusion conflicts with the bulk of judicial experience. (
R. v.
    W.H.
, 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 28).

[20]

The
    test to be applied by a reviewing court to determine whether jury verdicts are
    inconsistent is whether the verdicts are supportable on any theory of the
    evidence consistent with the legal instructions given by the trial judge:
R.
    v. Pittiman
, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7. On a multi-count
    indictment against a single accused, the verdicts will be supportable if the
    trial judges instructions were proper legal instructions that could have led
    the jury to accept a theory of the evidence producing these verdicts:
R.
    v. S.L.
, 2013 ONCA 176, 300 C.C.C. (3d) 100, at para. 5. As indicated in
Pittiman
,
    at para. 6, the authority to set aside a verdict on the ground of inconsistency
    is based on the jurisdiction accorded by s. 686(1)(a)(i) of the
Criminal
    Code
to set aside a verdict on the ground that it is unreasonable or
    cannot be supported by the evidence. The court noted, at paras. 6-7:

Hence, before an appellate court may interfere with a verdict
    on the ground that it is inconsistent, the court must find that the verdict is
unreasonable
.
    The appellant bears the onus to show that no reasonable jury whose members had
    applied their minds to the evidence could have arrived at that conclusion:
R.
    v. McLaughlin
(1974), 15 C.C.C. (2d) 562 (Ont. C.A.).

The onus of establishing that a verdict is unreasonable on the
    basis of inconsistency with other verdicts is a difficult one to meet because
    the jury, as the sole judge of the facts, has a very wide latitude in its
    assessment of the evidence. [Emphasis in original.]

[21]

In
    my view, there is no logical inconsistency between the acquittal on the first
    count and the conviction on the second count.

[22]

In
    a case in which the accused gives evidence, an acquittal does not necessarily
    mean the complainant was not believed. The jury may accept or reject some,
    none, or all of a witness's evidence. The appellant's argument is premised on
    the assumption that if the jury rejects some of the complainant's evidence, it
    must reject it all. This is clearly not the law.

[23]

As
    the Supreme Court noted in
Pittiman
, at para. 8, if there are multiple
    counts against a single accused, "different verdicts may be reconcilable
    on the basis that the offences are temporally distinct, or are qualitatively
    different, or dependent on the credibility of different complainants or
    witnesses." That is what we have here.  While the two charges stem from the
    appellants response to A.G.s requests to play pool, that is their only link.
    Otherwise, they relate to two distinct incidents, at different times, in
    different parts of the appellants house, and with different impacts on A.G.

[24]

In
    my view, it cannot be said that the acquittal on the first count must be
    interpreted as a rejection of A.G.s credibility, thereby disentitling the jury
    from convicting the appellant on the second count. Based on A.G.s evidence,
    the events involved in count 1 were related to a location in the house where
    the pool table was kept. Given the contradictory evidence about whether the
    pool table was located where A.G. claimed it was, the jury could have had a
    reasonable doubt about the incident involved in count 1.  By contrast, other
    than the divide between the versions of events described by A.G. and the
    appellant, there was no controverted evidence with respect to the incident
    underlying count 2.  Moreover, it was open to the jury to regard A.G.s
    evidence that on the second occasion the appellant ejaculated as something that
    would have a lasting impact on A.G., making that aspect of his testimony more
    reliable.

[25]

There
    is no reason to believe that the verdicts were the product of any unjustifiable
    compromise. The conviction on the second count was reasonable and amply
    supported by the evidence.

[26]

I
    would therefore not give effect to this ground of appeal.

2.

Were the trial judges instructions incomplete with respect to the
    appellants assertion that A.G.s false allegations were the product of his
    dissatisfaction over the inheritance?

[27]

The
    appellant testified that he believed A.G. made these allegations against him
    because of the division of the appellants mothers estate.  The appellant
    submits that the trial judge failed to instruct the jurors that, even if they
    found that the appellants belief lacked a factual basis, they could conclude
    that the appellant was honestly mistaken about the real motivation behind
    A.G.s allegations.  Thus, a rejection of the appellants theory would not
    necessarily affect the jurys assessment of his credibility.

[28]

The
    difficulty with this argument is that the jury was, in fact, instructed in
    almost the precise language the appellant now suggests. The trial judge
    explicitly told the jury to consider whether any inconsistencies in a witnesss
    evidence were attributable to honest mistakes or deliberate lies.  He
    instructed the jury:

Did [the inconsistencies] reflect honest mistakes, or
    deliberate lies in your view? Were there any sensible explanations offered for
    the inconsistencies, and on the whole did such inconsistencies really make the
    main points of that witnesss testimony more or less believable and reliable?

[29]

The
    appellants argument must fail.

SENTENCE APPEAL

1.

Should the house arrest terms of the conditional sentence order be
    varied?

[30]

The
    appellant submits that while the conditional sentence imposed accords with the position
    taken by defence counsel at trial, the terms of the sentence are unduly
    restrictive.  The order does not allow the appellant to leave his home except
    for medical purposes.  He cannot attend to personal necessities like purchasing
    groceries, going to the bank or getting a haircut.  In fact, the order does not
    allow him to be outside of his actual residence.  He cannot attend to property maintenance
    demands, such as mowing the lawn or shovelling snow.  This places an undue
    burden on the appellants wife, particularly since the parties live on a large
    rural property.

[31]

The
    appellant therefore seeks a variation of the terms of the conditional sentence
    order to allow him to be

·

out of his house for a scheduled four hours per week to attend to
    his personal affairs;

·

outside his house but within the boundaries of his property, so
    as to be able to take care of home and property maintenance tasks; and

·

out of his house for purposes and during time periods allowed in
    writing by his sentence supervisor (for instance, to attend at the bank with
    his wife to sign financial documents).

[32]

In
    oral argument, the Crown quite fairly conceded that the absence of any
    condition allowing the appellant to leave his residence at all, even with the
    prior written permission of his supervisor, is unreasonable.  In my view, the circumstances
    of this case, together with the Crowns concession, support the conclusion that
    a conditional sentence this restrictive is clearly unreasonable, a conclusion
    that gives this court jurisdiction to vary the sentence: see
R. v.
    Shropshire
, [1995] 4 S.C.R. 227, at para. 48.

[33]

I
    would therefore vary the terms of the conditional sentence to allow the appellant,
    with prior written consent of his supervisor, to leave his residence for up to four
    hours per week to attend to personal affairs.

[34]

I
    see no basis for appellate intervention in relation to the other terms of the
    conditional sentence that the appellant seeks to vary.

DISPOSITION

[35]

I
    would therefore dismiss the conviction appeal.  I would grant leave to appeal
    sentence, and allow the sentence appeal in part by varying the terms of the
    conditional sentence as indicated above.

Released: September 23, 2015 (EAC)

Gloria
    Epstein J.A.

I
    agree E.A. Cronk J.A.

I
    agree David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Batson, 2015 ONCA 593

DATE: 20150902

DOCKET: C54935

Laskin, Feldman and Simmons JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyler Lee Batson

Appellant

Howard L. Krongold, for the appellant

Grace Choi, for the respondent

Heard: February 5, 2015

On appeal from the conviction entered on February 18,
    2011, by Justice Albert J. Roy of the Superior Court of Justice, sitting with a
    jury.

Feldman J.A.:

[1]

The appellant went to an apartment to make a small purchase of
    marihuana. Because he had once been attacked when purchasing drugs, he carried
    a concealed loaded handgun when he went to make a drug purchase. In this case,
    he pulled out his gun and soon after shot and killed a man at the apartment. He
    claimed the death was unintentional and that he shot the man in self-defence.
    He was charged with first degree murder. The trial judge charged the jury on
    self-defence only under s. 34(2) of the
Criminal Code
, R.S.C. 1985, c.
    C-46. The jury convicted the appellant of second-degree murder.

[2]

The appellant raises two grounds of appeal: 1) whether the trial judge
    erred in his charge on s. 34(2); and 2) whether the trial judge erred by
    failing to also charge on self-defence under s. 35 of the
Code
.

[3]

For the reasons that follow, I would not give effect to either ground of
    appeal.

Facts

[4]

The story of the events leading to the shooting came from four
    witnesses: the appellant; his girlfriend, Tashi Simpson; Ms. Simpsons friend,
    Agatha Krakowski; and Ms. Krakowskis friend, Christelle Dory.

[5]

Ms. Simpson and the appellant testified that on the day of the shooting,
    December 17, 2008, Ms. Simpson had arranged for the appellant to visit Ms.
    Krakowskis apartment to buy $20 worth of marihuana. Ms. Krakowski had told Ms.
    Simpson that her friend Paul Marcelus was at her apartment, but Ms. Simpson
    testified she did not mention this detail to the appellant. The appellant also
    said he did not know ahead of time that Mr. Marcelus would be there.

[6]

The appellant did not know Mr. Marcelus personally, but a few months
    earlier he had seen his cousin talking to him. When he asked his cousin whom he
    was talking to, his cousin told him that it was Polo, a guy who had once
    ripped him off. The appellant assumed the rip-off had occurred during a drug
    deal.

[7]

Before the appellant left for Ms. Krakowskis apartment on the day of
    the shooting, he took his loaded handgun out of the trunk of his car and put it
    into the front pocket of his jeans. The gun had no trigger safety and could be
    fired rapidly. He testified that although he had obtained the gun several years
    earlier, he had never unloaded it or even brandished it at anyone before.
    However, because he had been attacked during a drug purchase when he was 17 (he
    was 24 at the time of the shooting), he usually brought the gun when he was
    buying drugs from someone he did not know. The appellant testified that he
    brought the gun along on this occasion as a precaution because Ms. Simpson told
    him that someone would be dropping the drugs off to Ms. Krakowskis apartment.

[8]

The appellant testified that when he entered the small apartment, he saw
    a man sitting on the couch and assumed it was the person who was going to sell
    him marihuana. When he realized that the man was Mr. Marcelus, he was surprised
    and became concerned that Mr. Marcelus was going to rip him off. The appellant
    asked Mr. Marcelus if he was Polo. Mr. Marcelus said he was, and the appellant
    then said: I heard that you ripped off my cousin.

[9]

According to the appellant, Mr. Marcelus reacted by dropping the cell
    phone he was holding, quickly rising from the couch, and making a screwface
    (tilting his head to the side and sucking his teeth), which is a sign of
    disrespect in the Caribbean community. Mr. Marcelus also reached behind his
    back as if for something in his back pocket. The appellant thought Mr. Marcelus
    was angry and was reaching for a weapon. A small knife was later discovered in
    Mr. Marceluss back pocket.

[10]

The
    appellant, who was approximately the same size as Mr. Marcelus, then drew his
    gun, pointed it down toward Mr. Marceluss waist, and took a step back. He
    testified that he pulled out the gun to deter Mr. Marcelus and that he was
    trying to leave by backing out of the apartment. At that point, Ms. Krakowski
    and Ms. Dory ran out of the apartment. The appellant heard the door hit the
    wall and turned around, at which point Mr. Marcelus grabbed the gun and pulled
    on it. When the appellant squeezed the gun to keep hold of it, it accidentally
    discharged. When Mr. Marcelus kept trying to yank the gun away, the appellant
    fired a second time.

[11]

The
    appellant testified that his hands were sweaty and the gun was slipping. He
    thought he was going to die. At that point, he screamed for Mr. Marcelus to let
    go of the gun, but Mr. Marcelus held strong. The appellant decided that he was
    not prepared to let go of the gun and run out of the apartment because of the
    risk that Mr. Marcelus would seize the gun and shoot him. He decided he had to shoot
    again and hope that Mr. Marcelus would let go. He fired two more shots, and Mr.
    Marcelus fell back onto the couch. After Mr. Marcelus let go of the gun and
    fell backwards, the appellant ran out of the apartment, drove home, changed his
    clothes and eventually went to his night shift job. He was arrested during his
    coffee break. Under interrogation at the police station, he denied any involvement
    in the shooting.

[12]

In
    cross-examination, the appellant claimed he did not want to shoot the gun or
    hurt Mr. Marcelus. He said that before the first shot, which went off
    accidentally, he had no intention of firing the gun. However, when Mr. Marcelus
    refused to let go, the appellant thought that Mr. Marcelus would kill him if he
    got the gun.

[13]

There
    was some other evidence about the sequence of events. Ms. Dory was uncertain
    whether the appellant pulled out the gun while Mr. Marcelus was sitting on the couch
    or as he was attempting to rise from the couch. However, she said that as soon
    as Mr. Marcelus agreed he was Polo, the appellant pulled out the gun and said:
    I heard you robbed my  cousin. She also said that she and Ms. Krakowski ran
    out before the gun was fired and that she heard the shots when she was outside
    the apartment.

[14]

Ms.
    Krakowski testified that she saw the appellant fire the first shot after he
    asked Mr. Marcelus if he had robbed his cousin. However, she did not say this
    in her preliminary inquiry testimony.

[15]

There
    was expert forensic evidence at trial regarding the gunshots. Mr. Marcelus had
    two gunshot wounds on his hands and two on his torso, as well as a graze injury
    on the front of his left leg. There was also some powder on one hand suggesting
    close proximity to the gun barrel when it discharged. At the scene, the bullets
    had gone through the couch to the floor and one had gone out the window behind
    the couch. The forensic analysis could not account for the order of the firing
    of the shots.

[16]

Closed
    circuit videotape from the lobby of Ms. Krakowskis apartment showed the
    appellant waiting to go up the elevator at 6:41 p.m. Three minutes later, at
    6:44 p.m., he was seen leaving the building.

[17]

The
    appellant was charged with first degree murder. The Crowns theory was that the
    appellant knew from Ms. Simpson that Mr. Marcelus would be at Ms. Krakowskis
    apartment, and that he went there to kill Mr. Marcelus because Mr. Marcelus had
    ripped off the appellants cousin. The defence position was that the appellant
    went to Ms. Krakowskis apartment to make a small drug purchase and did not
    expect to see Mr. Marcelus there. The confrontation between the appellant and
    Mr. Marcelus was not premeditated, but escalated into a life-and-death struggle
    for the gun that eventually resulted in the appellant shooting and killing Mr.
    Marcelus in self-defence.

Issues

[18]

The
    appellant raises two issues on the appeal. The first concerns the trial judges
    charge on s. 34(2). The issue is whether the trial judge erroneously left the
    jury with the impression that the s. 34(2) defence was not available to the
    appellant if Mr. Marcelus was acting in lawful self-defence when he assaulted
    the appellant. The appellant submits that the jury ought to have been told that
    the unlawful assault requirement in s. 34(2) would be satisfied if the
    appellant reasonably believed he was being unlawfully assaulted, even if Mr.
    Marcelus was acting in lawful self-defence.

[19]

The
    second issue on the appeal is whether the trial judge erred by failing to also
    leave self-defence under s. 35 of the
Code
with the jury.

Analysis

(1)

Did
    the trial judge err in his charge to the jury on s. 34(2) in his description of
    the requirement of an unlawful assault?

Self-defence under s. 34(2)

[20]

The
    self-defence provisions of the
Code
in force at the time of the
    offence and trial have been repealed and replaced and are no longer in effect:
Citizens
    Arrest and Self-defence Act,
S.C. 2012, c. 9, s. 2. Section 34(2) of the
Code
,
    in force at the time of the offence and the trial,  read as follows:

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

(a) he causes it under reasonable apprehension of death or
    grievous bodily harm from the violence with which the assault was originally
    made or with which the assailant pursues his purposes; and

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

[21]

Case
    law from this court and the Supreme Court of Canada has explained that the
    requirement of an unlawful assault by the victim is satisfied if there was an
    actual unlawful assault, or the accused reasonably believed that he was being
    unlawfully assaulted:
R. v. Pétel,
[1994] 1 S.C.R. 3, at p. 13;
R.
    v. Pilon
,

2009 ONCA 248, 243 C.C.C. (3d) 109, at para. 62;
R.
    v. S.M.,
2012 ONCA 225, 291 C.C.C. (3d) 64, at paras. 19, 21, 23;
R.
    v. Stewart
,

2014 ONCA 70, 306 C.C.C. (3d) 269, at para. 22. The
    concept of reasonable belief includes both a subjective as well as an objective
    component:
R. v. Cinous,
2002 SCC 29,

[2002] 2 S.C.R. 3, at
    paras. 93-5.

[22]

Consistent
    with that explanation, s. 34(2) can apply even if the victims assault on the
    accused was lawful because the victim was also acting in self-defence. For this
    to be the case, the jury must accept, or have a reasonable doubt, that the
    accused reasonably believed the victims assault was unlawful (i.e. that the
    victim was not acting in self-defence). Stated another way, s. 34(2) can apply
    where the victim is objectively acting in lawful self-defence by assaulting the
    accused, but the accused reasonably believes that the victim is unlawfully
    assaulting him:
R. v. Mohamed
, 2014 ONCA 442, 310 C.C.C. (3d) 123, at
    paras. 12-13, 16, 23.

The parties positions at trial

[23]

The
    defence position at trial was that the appellant reasonably believed Mr.
    Marcelus unlawfully assaulted him when Mr. Marcelus dropped his cellphone, rose
    from the couch, made the disrespectful screwface, and reached behind his back
    as if for a weapon in response to the appellants comment about ripping off his
    cousin.  The defence said that it was only then that the appellant drew his
    gun, which Mr. Marcelus grabbed, resulting in the ensuing struggle over the gun
    and the appellants belief that he had to shoot or be shot.

[24]

The
    Crowns position was that the appellant was the initial aggressor and that all
    of Mr. Marceluss actions, including grabbing the gun barrel, were lawful,
    self-defensive reactions to the position he found himself in (being accused of
    a rip-off then facing a gun at very close range).

The appellants submissions on appeal

[25]

On
    appeal, the appellant submits that the trial judge misdirected the jury by
    suggesting to them that if they were satisfied that Mr. Marcelus was acting in
    lawful self-defence, then the appellant could not claim self-defence under s.
    34(2). He points to the following passage in the charge:

As I said, there is other evidence for you to consider. Counsel
    has gone over it. The purpose of this exercise is not to cover the minutia, all
    of the evidence. You will remember some of the evidence. This is just a brief summary
    of what took place there.

It is for you to decide whether the actions of Mr. Marcelus was
    an assault or was he just defending himself as he is lawfully entitled to do
    from the assault of the accused.

Both counsel, for the Crown and the defence, ask you to make
    different inferences or come to a different conclusion from that evidence.

Defence asks you to conclude that when you consider all of the
    evidence, and I do not intend to repeat it all, it is a reasonable inference,
    defence is making the case, that the accused believed that he was being
    assaulted by Mr. Marcelus. That is the defence position; that there was an
    assault, that Mr. Batson reasonably believed that he was going to be assaulted
    by Mr. Marcelus.

Counsel for the Crown says, wait a minute, here we have Mr.
    Marcelus facing a pretty violent confrontation on the part of the accused. He makes
    the accusation about ripped off my cousin and then he is looking at a
    loaded 357 Magnum. What Mr. Marcelus was doing was what he was entitled to do,
    and he was attempting to defend himself.

So you can see the different inferences. You are going to have
    to make a decision; what inference you are going to make from those facts.

[26]

The
    appellant argues further that to the extent that the trial judge also told the
    jury that they had to decide whether the appellant reasonably believed he was
    being assaulted, that did not cure the error in the charge. Rather the effect
    of that part of the charge was to suggest to the jury that it had to choose
    between finding that the appellant reasonably believed he was being unlawfully
    assaulted or that Mr. Marcelus was acting in lawful self-defence, and that the
    two were mutually exclusive.

Discussion

[27]

The
    problem with the appellants argument is that the concern raised is not borne
    out when the isolated passage quoted above is read together the following
    paragraph that preceded the impugned passage:

It is not necessary that Paul Marcelus actually assaulted Tyler
    Batson. The issue is whether Tyler Batson reasonably believed, in the
    circumstances as he knew them to be, that he was being unlawfully assaulted,
    not whether Tyler Batson was actually assaulted by Paul Marcelus.

as well as with what immediately follows in the charge:

If you are satisfied beyond a reasonable doubt that Mr. Batson
    was not unlawfully assaulted
or, did not reasonably believe that he was
    being unlawfully assaulted
, Tyler Batson was not acting in lawful
    self-defence on this basis. Your consideration of self-defence would be at an
    end, because one of the essential elements of self-defence is not met, if that
    is your conclusion.

If you find or have a reasonable doubt about whether Tyler
    Batson
reasonably believed
that he was unlawfully assaulted, you would
    move on to the next question. [Emphasis added.]

[28]

These
    further portions of the charge make it clear that either an actual unlawful
    assault by Mr. Marcelus, or the appellants reasonable belief that Mr. Marcelus
    was unlawfully assaulting him, would satisfy the unlawful assault component of
    s. 34(2).

[29]

Furthermore,
    the earlier part of the quoted portion of the charge would have been heard and
    understood by the jury together with, and in the context of, the last two
    quoted paragraphs which immediately followed it. The trial judge put the issue
    to the jury using the defence and Crown arguments. The defence argued the
    accused believed he was being or going to be assaulted by Mr. Marcelus, while
    the Crown said Mr. Marcelus was attempting to defend himself in the face of an
    accusation and a gun drawn.

[30]

The
    jury would have understood that when the trial judge referred to the Crowns
    argument, they would not only have to consider what Mr. Marcelus was actually
    doing, but also the appellants reasonable perception of what Mr. Marcelus was
    doing, including whether his actions constituted an unlawful assault.
    Otherwise the latter two paragraphs quoted above would have been meaningless.

[31]

The
    appellant also submits that counsel and the trial judge misunderstood the law
    because the trial took place before this courts decision in
Mohamed
,
    where the court held that s. 34(2) could apply when both the accused and the
    victim were acting in lawful self-defence. As such, the charge must be viewed
    in that context.

[32]

I
    agree that it appears from the record that trial Crown counsel took the
    position in pre-charge discussions that self-defence could not apply on these
    facts, relying in part on the trial judges decision in
Mohamed
, that
    s. 34(2) could not apply if the victims initial assault was in lawful
    self-defence. However, the trial judge disagreed with the Crown on this point,
    concluding instead that self-defence under s. 34(2) could apply depending on
    the jurys view of the evidence and the inferences to be drawn from it.

[33]

To
    summarize, when the charge is read as a whole, it is clear that the trial judge
    charged the jury that either an actual unlawful assault by Mr. Marcelus, or an
    action by Mr. Marcelus that the appellant reasonably perceived as an unlawful assault,
    would satisfy the unlawful assault component of s. 34(2). The trial judge
    therefore made no error in his explanation of that component of the test.

[34]

I
    would not give effect to the first ground of appeal.

(2)

Did the trial judge err by failing to leave self-defence with the jury
    under s. 35 of the
Code
?

Self-defence under s. 35

[35]

Like
    s. 34(2), s. 35 of the
Code
has also now been repealed and replaced by
    the one new self-defence provision in s. 34. However, at the time of the
    offence and of the trial, s. 35 read as follows:

35. Every one who has without justification assaulted another
    but did not commence the assault with intent to cause death or grievous bodily
    harm, or has without justification provoked an assault on himself by another,
    may justify the use of force subsequent to the assault if

(a) he uses the force

(i) under reasonable apprehension of death or grievous
    bodily harm from the violence of the person whom he has assaulted or provoked,
    and

(ii) in the belief, on reasonable grounds, that it is
    necessary in order to preserve himself from death or grievous bodily harm;

(b) he did not, at any time before the necessity of preserving
    himself from death or grievous bodily harm arose, endeavour to cause death or
    grievous bodily harm; and

(c) he declined further conflict and quitted or retreated from
    it as far as it was feasible to do so before the necessity of preserving
    himself from death or grievous bodily harm arose.

The appellants changed position on the applicability of s. 35

[36]

During
    the pre-charge discussion at trial, defence counsel, Mr. Weinstein, initially
    raised the suggestion that self-defence under both ss. 34(2) and 35 should be
    left with the jury. Ultimately, he agreed with the trial judge that s. 34(2)
    fit most closely with the appellants version of events, i.e. that the
    appellant drew his gun only in response to Mr. Marceluss unlawful assaultive
    actions, and that in accordance with this courts direction in
R. v. Pintar
(1996), 30 O.R. (3d) 483, the trial judge should charge only on the most
    appropriate section.

[37]

I
    note that most recently in
R. v. Rodgerson
, 2015 SCC 38, where
    Moldaver J. reiterated the principle he first set out in
Pintar
, he
    also stated at para. 49 that defence counsel has an obligation to assist the
    trial judge in crafting a jury charge that provides clear comprehensible
    instructions on the defences that are actually implicated by the defence theory
    of the case. That is what Mr. Weinstein did at this trial.

[38]

On
    appeal, the appellant now submits that the trial judge was obliged to leave s.
    35 with the jury, as well. He argues that the jury could have rejected the
    appellants version of events and accepted the Crowns position that the
    appellant was the initial aggressor when he pulled out his gun. If the jury
    were to have accepted that the appellant could not reasonably have perceived
    Mr. Marceluss reaction to his accusation about ripping off his cousin as an
    unlawful assault, then there would be no unlawful assault by Mr. Marcelus to
    satisfy that requirement of s. 34(2). In those circumstances, he submits, there
    was an air of reality to the applicability of s. 35 and it filled a gap in the
    availability of the defence of self- defence.

Discussion

[39]

Section
    35 has been described in the jurisprudence over time as both a broader and a
    narrower defence than s. 34(2). Before the Supreme Courts decision in
R.
    v. McIntosh
, [1995] 1 S.C.R. 686, s. 35 was understood to be the only
    self-defence section that applied where the accused was the initial aggressor.
    However, in
McIntosh
, the majority found that because s. 34(2) does
    not contain the limiting words found in s. 34(1) (without having provoked the
    assault), those words could not be read in. Therefore, along with s. 35, s.
    34(2) could also apply to an accused who was the initial aggressor where death
    or grievous bodily harm to the victim ensued.

[40]

However,
    as McLachlin J. discussed in her dissenting reasons in
McIntosh
, s. 35
    had been traditionally viewed as the narrower defence, because while it allowed
    an initial aggressor to be able to rely on self-defence, it was only available
    where that aggressor tried to disengage and retreat before it became necessary
    to preserve himself from death or grievous bodily harm by assaulting or killing
    the victim.

[41]

In
    Applying the Law of Self-Defence (2008), 12 Can. Crim. L. Rev. 25, at p. 73,
    Professor Paciocco (as he then was) explained that the evident purpose of s. 35
    was to provide for self-defence where the accused is responsible for what he intends
    to be a relatively minor confrontation, but then the retaliation by the
    ultimate victim requires the accused to use violence to preserve himself from
    death or grievous bodily harm. He also observed that the provision provides a
    narrower defence than s. 34(2) because of the extra retreat requirement.

[42]

In
Cinous
, at para. 124, McLachlin C.J. and Bastarache J. explained that
    s. 34(2) provides a justification for killing where the elements of the defence
    are made out, but observed that the defence is intended to cover situations of
    last resort. In
R. v. S.M.
, 2012 ONCA 255, 291 C.C.C. (3d) 64, at
    paras. 34-5, this court noted that description from
Cinous
and added
    that the same could be said for s. 35, which, if anything, is more a matter of
    last resort as it covers situations where the accused provoked the
    altercation that led to the killing. In other words, the section is one of
    last resort because of its narrow application and availability.

[43]

To
    test the potential applicability of s. 35, the trial judge had to ask whether
    there was some evidence to give an air of reality to each of the requisite
    elements of the s. 35 defence:
Cinous
, at paras. 93 and 97. That is,
    the trial judge had to be satisfied that there was evidence on the record upon
    which the jury acting reasonably could acquit:
Cinous
, at para. 49.

[44]

Applied
    to the facts of this case, the six requisite elements under s. 35 are:

1) the appellant assaulted Mr. Marcelus without justification;

2) when the appellant commenced the assault  in this case when
    he drew his loaded handgun and pointed it at Mr. Marcelus  he did not intend
    to cause death or grievous bodily harm;

3) the appellant shot and killed Mr. Marcelus under the
    reasonable apprehension that Mr. Marcelus was going to kill him or cause him
    grievous bodily harm if Mr. Marcelus had been able to wrest the gun away from
    him;

4) the appellant believed on reasonable grounds that shooting
    Mr. Marcelus was necessary to preserve himself from death or grievous bodily
    harm;

5) the appellant did not endeavor to cause death or grievous
    bodily harm before the necessity of preserving himself arose; and

6) the appellant declined further conflict and retreated from
    it as far as was feasible before the necessity of preserving himself arose.

[45]

I
    will address the required elements in order. The first element would have
    required the jury to reject the appellants evidence that he pulled out his
    loaded handgun in response to Mr. Marceluss unlawful assault, and to accept
    the Crowns position that the appellant was the initial aggressor.  I agree
    that there was an air of reality to this element because there was some
    evidence to support the Crowns position, including the evidence of Ms.
    Krakowski and Ms. Dory about the sequence of events leading up to the shooting.

[46]

The
    second requirement of the defence is that when the appellant drew his loaded
    gun and pointed it at Mr. Marcelus, he did not intend to cause death or
    grievous bodily harm. In my view, the defence must fail at this stage: there
    could be no air of reality to the second requirement once it was accepted that
    the appellant was the initial aggressor.

[47]

I
    agree with Professor Paciocco (now Justice Paciocco), that s. 35 was intended
    to provide the defence of self-defence in situations where, through a minor
    initial assault, an accused person provokes an encounter that escalates to the
    point where the accused believes he cannot retreat and has to use force in
    order to protect himself from death or grievous bodily harm.

[48]

By
    contrast, where the accused is the initial aggressor who draws and points a
    loaded handgun at the victim, there can be no air of reality to the proposition
    that, in the opening words of s. 35, he did not commence the assault with
    intent to cause death or grievous bodily harm. Even if he testifies that his
    subjective intent was not to shoot as his first option, it is difficult to
    imagine a situation where he did not intend to do so in order to protect
    himself from the victims reaction  which is exactly what occurred here  and
    what would have occurred in any case where the defence is relied on.

[49]

This
    case illustrates the point. If the jury were to accept that the appellant drew
    his loaded gun, unprovoked by the victim, there is no evidence to suggest any
    other purpose or motive for doing so except that he intended to shoot it. And
    the only evidence is to the contrary. The appellant asked Mr. Marcelus whether
    he was Polo, learned that he was, accused him of ripping off his cousin, and
    pulled out his gun. One could at best speculate that his intent might have been
    to rip off Mr. Marcelus in retaliation for what he did to the appellants
    cousin, and he pulled out the gun only to threaten him, but that would be
    complete speculation with no evidence to support it. The appellant did not
    testify to that effect.

[50]

In
    my view, this conclusion also fits with the purpose and structure of the s. 35
    defence. To find an air of reality to the assertion that an accused initial
    aggressor who draws and points a loaded handgun does not intend to cause death
    or grievous bodily harm would allow the defence to apply, for example, where an
    accused breaks into a home and points a loaded gun at the occupant. If the
    occupant reacts in self-defence by also drawing and pointing a gun, then the
    intruder could shoot the occupant and claim self-defence, saying he did not
    draw his gun with the intent to kill or cause the victim grievous bodily harm.
    Such a result would be contrary to community standards of justice.

[51]

The
    appellant points to the decision of the British Columbia Court of Appeal in the
    case of
R v. Merson
(1983), 4 C.C.C. (3d) 251 (B.C. C.A.) for an
    example of a situation where a jury applied s. 35 notwithstanding that the
    accused commenced his assault on the victim by brandishing a loaded gun, where
    he testified that he did not intend to kill or harm the victim. Although it may
    be open to a jury to accept such an accuseds testimony, a properly instructed
    jury, applying its common sense to the totality of the circumstances, would in
    most cases conclude that such an accused must have intended to shoot the victim
    if he came to believe that it was necessary to do so to in order to preserve
    himself.

[52]

I
    agree with the opinion of Chief Justice Nemetz in dissent, that there was no
    evidence that could convey a sense of reality to an aggressor invoking s. 35 in
    the factual circumstances of that case.

[53]

Turning
    back to the other requisite components of the defence under s. 35, there was
    arguably an air of reality to elements three, four and five, in the
    circumstances of this case.

[54]

The
    last issue is whether there was an air of reality to the sixth element for the
    s. 35 defence to apply: that the appellant declined further conflict and
    retreated as much as feasible before the necessity of shooting to preserve
    himself arose.

[55]

Although
    there may well have been an air of reality in that once there was a struggle
    over the gun, the appellant could not safely let go and try to retreat, this
    demonstrates in another way why initial aggression with a loaded firearm does
    not fit into the s. 35 framework. Here, the important salutary effect of the
    essential retreat requirement of s. 35 is effectively neutered because the
    initial assault by the accused that led to the escalation was with a loaded gun.

[56]

To
    summarize, on its wording, s. 35 applies where an accused is the initial
    aggressor, but only where his initial aggression was not commenced with the
    intent to cause death or grievous bodily harm. If the initial aggression was
    not done with that lethal intent, and the victim then reacts with violence such
    that the accused then finds himself in grave peril and cannot retreat but must
    use force to preserve himself, the accused can claim self-defence under s. 35
    for that responsive use of force. However, s. 35 should not have an air of
    reality where the accuseds initial aggression by its very nature carries with
    it the intent - although not necessarily the initial desire  to cause death or
    grievous bodily harm if it is ultimately perceived necessary by the accused.

Conclusion on s. 35

[57]

There
    must be an air of reality to each component of the defence. In this case, once
    the first component is accepted  i.e. that the appellant was the initial
    aggressor  there was no air of reality to the second requirement, that the
    appellant did not commence the assault with the intent to cause death or
    grievous bodily harm by drawing his loaded gun on Mr. Marcelus.

[58]

In
    my view, leaving this defence with the jury would undoubtedly have
    disadvantaged the appellant. It would have required the jury to reject the
    appellants evidence that he was reacting to Mr. Marceluss actions that he
    perceived as an unlawful assault as untruthful, and instead find that he acted
    as the initial aggressor by pointing a loaded gun at the victim. If they
    accepted that scenario, it could have been perceived by the jury as more
    consistent with the charge of a planned and deliberate first degree murder.
    This was completely contrary to the defence position that the appellant did not
    know that Mr. Marcelus would be at Ms. Krakowskis apartment and that he only
    drew his gun in reaction to what he believed to be an impending armed assault
    by Mr. Marcelus. Both defence counsel and the trial judge correctly saw that
    leaving this section with the jury would have been contrary to the appellants
    interest.

[59]

For
    the foregoing reasons, I would dismiss the appeal.

Released: JL SEP 2, 2015

K. Feldman J.A.

I agree. John Laskin
    J.A.

I agree. J. Simmons
    J.A.