CITATION:
R. v. Forde, 2011
          ONCA 592

DATE: September 14, 2011

DOCKET: C49128

COURT OF APPEAL FOR ONTARIO

Feldman, LaForme and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cedric Forde

Appellant

James Lockyer and Brian Snell, for the appellant

Lucy A. Cecchetto, for the respondent

Heard: May 31, 2011

On appeal from the conviction
          entered by Justice Christopher Speyer of the Superior Court of Justice,
          sitting with a jury, on September 28, 2007.

H.S.
    LaForme J.A.:

OVERVIEW

[1]

The appellant admitted killing Clive McNabb, the former
    spouse of his common law partner, Carol Allamby. However, he testified that he killed
    McNabb in self-defence by stabbing him once with a knife after McNabb moved
    towards him with an open knife.  The appellant
    further testified that McNabb had violently attacked him on two previous
    occasions.

[2]

The
    appellant was charged with second-degree murder.   Following a trial
    by jury, he was acquitted on the murder charge but convicted of
    manslaughter.  The principal issue at trial was whether the Crown proved
    beyond a reasonable doubt that the appellant did not act in lawful
    self-defence.  Implicit in the jurys verdict is a rejection of the
    appellants position that he killed McNabb in self-defence.

[3]

The
    principal issue on appeal is whether the trial judge erred in various alleged
    respects in his jury instructions concerning the elements of self-defence in s.
    34(2) of the
Criminal Code
, R.S.C.
    1985, c. C-46. I conclude that the trial judge erred in one respect:  by permitting the jury to consider the
    appellants failure to retreat from his home in assessing the reasonableness of
    the appellants response to the threat he perceived from McNabb.  That error was fatal in my view, and thus a
    new trial is required.

BACKGROUND

[4]

As I would allow the appeal and order a new trial, my review of the
    evidence is limited to what is necessary to dispose of the central issue on
    appeal.

[5]

The appellant and Allamby were involved in a
    long-term relationship. They lived in an apartment that the appellant had
    leased about one month before the events giving rise to the charge.  The
    stabbing of McNabb took place in the bedroom of their

apartment.

[6]

The common link between the appellant and McNabb
    was Allamby, who, in addition to being the appellants common law wife, was also
    the mother of McNabbs two children.

[7]

At trial, the defence led evidence of two prior incidents of violent
    behaviour by McNabb against the appellant. One of the incidents took place
    approximately two-and-one-half years prior to the stabbing; the other
    approximately one month prior.  This
    evidence was tendered by the defence in support of the assertion that McNabb
    had a propensity for violence against the appellant and was the aggressor in
    the fatal confrontation between them. Although the Crown disputed the
    nature, extent and responsibility for the prior two incidents between McNabb
    and the appellant, there was ample evidence of animosity between the two men before
    the date of the killing.

[8]

McNabb had a full-time job as a computer
    technician and ran a small computer business.  He and the appellant also both dealt in drugs. Indeed, McNabb supplied
    the appellant and Allamby with drugs and was allowed to use their premises as a
    base to sell cocaine.
The appellant acknowledged his
    own drug-dealing activities in his evidence at trial.  He testified to keeping several knives in
    various rooms, specifically the bedroom and bathroom of the apartment, to be
    used in the event that trouble arose during drug transactions.

[9]

The evidence at trial established that on the day of the killing an
    acquaintance of the appellant and Allamby named Lori Mazzei mentioned to McNabb
    that a man named Joe Grasso was at the appellants and Allambys
    apartment.  Grasso apparently owed McNabb a drug debt. McNabb went to the appellants
    apartment with the apparent intention of collecting his money from Grasso.

[10]

The stabbing occurred in the bedroom of the apartment.  McNabb went into the bedroom to confront Grasso
    about the drug debt. Allamby reproached McNabb for entering her bedroom
    and an argument occurred between them. The defence evidence was that McNabb either
    pushed or slapped Allamby.

[11]

The appellant then entered the bedroom and, after he and McNabb began to
    argue, Allamby left the bedroom. The defence evidence was that McNabb pulled
    out a knife and threatened the appellant with it. The appellant then grabbed
    for a knife that was hidden in a closet and stabbed McNabb once, after which
    McNabb slumped to the floor.

[12]

When the police arrived at the front door of the apartment
    building, they were approached by Allamby and Mazzei, who let the officers into
    the building and led them to the apartment. The police found McNabb on the
    floor of the bedroom in a seated position with his back against a chair.
    He was unresponsive and had no pulse.  There was a stream of blood coming
    from his mouth and a large pool of blood located around him.
A knife belonging to McNabb with
    his blood on the blade was found by the police on the floor near his body. The
    knife was in a closed position.  The
    death of McNabb was caused by a single lethal stab wound to the chest.

[13]

The foregoing is a general account of some of the evidence adduced at
    trial that gave rise to the appellants conviction. I refer to other evidence
    relevant to the issues on appeal as I proceed through my analysis.

ISSUES

[14]

At trial, counsel agreed that the trial judge should
    only charge the jury on self-defence under s. 34(2)
[1]
and not under the other self-defence provisions in the
Criminal Code
.  The trial
    judge also charged the jury on the intent for murder and provocation.  Both the Crown and the defence were provided
    with draft and final copies of the charge. Counsel did not raise any objections
    to the charge.

[15]

For the first time on appeal, the appellant raises
    several issues concerning the trial judges charge on self-defence. The
    appellant submits that the trial judge committed three errors in the portion of
    his charge on the elements of the defence of self-defence under s. 34(2):

1.

The trial judge erred in asking the jury to
    consider whether the appellant was unlawfully assaulted.

2.

The trial judge erred in suggesting to the jury that
    self-defence was not available if the appellant was the initial aggressor.

3.

The trial judge erred in permitting the jury to consider
    whether the appellant ought to have retreated from his own home as a factor in
    assessing the availability of self-defence under s. 34(2).

[16]

Also in relation to self-defence, the appellant
    contends that the trial judge ought to have instructed the jury on the
    availability of other self-defence provisions in ss. 37 and 41 of the
Criminal Code
.

[17]

The appellant advanced two further grounds of appeal in
    his written submissions. First, he objected to the admission at trial of
    evidence of his general propensity for violence for purposes of balancing
    evidence concerning the deceaseds specific propensity for violence. This
    ground of appeal was abandoned in oral argument.

[18]

In addition, the appellant raised a ground of appeal
    concerning the conduct of the trial Crown (not the Crown on appeal), saying
    that her conduct resulted in a miscarriage of justice.  He did not press this ground in oral argument
    and conceded that the impugned conduct of the trial Crown was unlikely to be sufficient
    to warrant a new trial. There is no reason to canvass this issue in view of the
    result I reach.

[19]

As I explain more fully below, I would give effect to
    the appellants third argument concerning the trial judges instructions on s.
    34(2).  In particular, I conclude that
    the trial judge erred in his instructions on s. 34(2) of the
Criminal Code
by permitting the jury to
    consider whether the appellant ought to have retreated from his own home.  In my view, the authorities establish that,
    in the circumstances of this case, retreat was not a proper factor for the
    jury to consider.  That the jury was
    allowed to do so amounts to an error in law that requires a new trial.

ANALYSIS

Instructions on self-defence under
    s. 34(2)

[20]

For ease of reference, I first set out the provisions
    of s. 34(2) of the
Criminal Code
:

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.

[21]

Self-defence under s. 34(2) requires proof of three
    elements: (i) an unlawful assault against the appellant; (ii) the appellant
    must have had a reasonable apprehension of a risk of death or grievous bodily
    harm; and (iii) the appellant must have reasonably believed that it was
    necessary to cause harm or death to the victim in order to avoid the same
    fate:  see
R. v Cinous
, [2002] 2 S.C.R. 3, at para. 93.

[22]

The appellant alleges that the trial judge committed
    two errors in his instructions on the first element of the defence of
    self-defence under s. 34(2). One of these alleged errors was raised for the
    first time in oral argument on appeal. In particular, the appellant asserts
    that the trial judge erred in permitting the Crown to argue that McNabb was not
    assaulting the appellant. According to the appellant, the jury ought to have
    been instructed that this first element under s. 34(2) was satisfied based on
    the evidence at trial.

[23]

The appellants other argument in connection with the
    first element of the defence is that the trial judge erred in instructing the
    jury that whether or not the appellant was being unlawfully assaulted turned on
    which one of the two men was the initial aggressor.  The appellant says that on these
    instructions, if the jury were to find that McNabb was not the initial
    aggressor, then the jury might decide that self-defence was not available to
    the appellant, which would be an error in law.

[24]

With respect to the third element under s. 34(2), the
    appellant argues that the Crown should not have made the appellants ability to
    retreat a live issue. He says that the trial judge, having permitted the Crown
    to raise this issue, was required to clearly instruct the jury that the
    appellant had no obligation to retreat from his home.  It is this issue that I conclude disposes of
    the appeal.

[25]

Because I would fully dispose of the appeal on
    the issue of retreat, I believe it is unnecessary to address the other two
    alleged deficiencies in the trial judges instructions on s. 34(2).  I would note again that the other two alleged
    deficiencies are being raised for the first time on appeal and that there was
    no objection to the jury charge at trial.

Ability to Retreat

[26]

Whether the appellant was able to retreat from his
    apartment was made a live issue by the Crown at trial. In cross-examination,
    the trial Crown explored the issue of the size of the appellants apartment and
    questioned him about how long it would have taken him to go from the bedroom to
    the front door.  He replied:

A.  In
    seconds, Id say seven seconds from my bedroom to the front door if that.

[27]

The following exchange then occurred in cross:

Q.  And if
    youre running out, Im going to suggest it would probably take you --

A.  A lot
    quicker.

Q.  A couple
    of seconds?

A.  Yeah.

Q.  And,
    again sir, um  and I know your answer is going to be:  I couldnt do that.  But you had that option available to you
    because youre on the outside of the bedroom.  Correct?

A.  Maam,
    yea, and hes pulling it [the bedroom door] open.  I got dress shoes on;  hes got running shoes on.  As soon as the door  and my hallway  and
    you can see it from the video across there I could have fall.  Ive been stabbed before by this man; Ive
    been attacked by this man. Im not taking that chance of running out and he
    falling on top of me.  I cant do that.
    Im sorry.

...

Q.  That was
    an option available to you to retreat and run out.  Scream for help.  Right?  You could have done that?

A.  Maam, I
    already experienced what happened when I tried to run off with that
    person.  I wasnt going to do that again.

[28]

In her closing argument before the jury, the trial
    Crown put the issue of retreat squarely to the jury and urged them to find that
    the appellant could have retreated from the apartment:

[H]e gives us
    an elaborate explanation that he couldnt have run
, he couldnt have asked
    someone to call the police, he couldnt have asked Carol [Allamby] to call 911
    even though he said she was there.   If
    hes on the outside of the door, ladies and gentlemen, someone is coming at you
    with a knife youre not going to be concerned that youre [not?] wearing
    running shoes.
I think youre going to bolt.  The door to the hallway was right there
.
If he wanted to pull the door
    why didnt he pull that door shut open [sic].  At least he was outside of the apartment,
there are other people living
    in the apartment. No. He goes for the knife; went for the knife because that
    was his initial intention. [Emphasis added.]

[29]

The trial judges oral instructions to the jury
    included this general statement of the Crowns position:

It is the Crowns position that Mr. Forde was not
    acting in lawful self-defence, and could have used other options instead of
    stabbing the deceased but chose not to avail himself of such options.

[30]

In his specific instructions on the third element of
    self-defence under s. 34(2), the trial judge told the jury:

Consider, as well, again the relative size,
    strength and positioning of Forde and McNabb, proximity of the two individuals,
    the suddenness of the assault by Clive McNabb, Mr. Fordes evidence as to his
    state of mind when he stabbed Mr. McNabb.
And the availability of other
    options for Cedric Forde to extricate him from the confrontation with Clive
    McNabb
.  And the likelihood of Mr.
    McNabb persisting in his attack. Those are all factors and questions youll
    consider. [Emphasis added.]

[31]

What the trial judge did not include in his
    instructions, which the appellant argues constitutes reversible error, is that
    retreat is not a required element of self-defence under s. 34(2), nor is it
    even a factor to consider when the accused is attacked in his own home.

[32]

There is no question
    that the trial judge in his charge to the jury made it clear that the issue was
    not whether the only way for the appellant to save himself from death or
    grievous bodily injury was to actually kill or cause serious injury to the
    deceased; rather, it was whether the appellant reasonably believed that to do
    so was the only way to save himself from a similar fate.

[33]

In addition, the trial
    judge charged the jury along the lines of
R.
    v. Baxter
(1975), 27 C.C.C. (2d) 96 (Ont.

C.A.
) to the effect that the jury
    must understand that a person under attack must often make a decision quickly,
    without time for calm and detached reflection. In other words, a person
    defending himself against attack, reasonably apprehended, cannot be expected to
    weigh to a nicety, the exact measure of necessary defensive action.  Nevertheless, I do not believe that these
    proper elements of his charge are sufficient to remedy the error relating to
    the appellants ability to retreat, which I now explain.

[34]

The
    Crowns position is that the trial judge did not suggest that there was an
    obligation on the appellant to retreat. Rather, he merely and quite properly
    left the appellants ability to retreat as a factor the jury could consider in
    deciding whether the appellant had no other means to preserve himself.  In support of its position, the Crown relies
    on this courts decision in
R. v. Cain
, 2011 ONCA 298, at paras. 9 and 11,
which state:

Unlike s. 35 of the
Criminal Code
, s. 34(2)
    does not require defendants to retreat in the face of an assault, but rather
    permits defendants to stand their ground during the early stages of a
    confrontation.  However, as the appellant properly concedes, the
    possibility of retreat is relevant to the second and third elements of the s.
    34(2) defence, namely, the issues of whether the appellant did have a
    reasonable apprehension of death or grievous bodily harm, and whether the
    appellant had a reasonable belief that it was not otherwise possible to save
    himself from harm except by killing Willis: [Citations omitted.]

...

... However, had Crown counsel told the jury that
    the appellant was precluded from raising the defence of self-defence because he
    had failed to retreat at the start of the
confrontation,
the
    respondent concedes that the trial judge would have been required to give a
    correcting instruction. The appellant in turn concedes that Crown counsel did
    not explicitly make that erroneous submission to the jury.  The issue for
    us to decide is whether there was a sufficient risk that the jury could have
    understood Crown counsel to be making that erroneous submission, requiring a
    correcting instruction from the trial judge.

[35]

T
he Crown concedes that there are two
    limitations on the issue of retreat: (i) retreat is not relevant where it is
    not a realistic option to the accused; and (ii) people are generally not
    expected to abandon their homes in order to avoid engaging in acts of
    self-defence. However, the Crown
    submits that while there is no specific duty or requirement to retreat in s.
    34(2), the ability to retreat is nonetheless a factor that may be taken into
    account in considering whether the accused had no other means to preserve
    himself  including in cases where the attack occurs in the accuseds own home.
    According to the Crown, this factor is relevant to the reasonableness of the
    accuseds belief that he could not otherwise save himself in the circumstances
    as he perceived them to be.

[36]

In other words,
    according to the Crown, there is no absolute bar against the consideration of
    retreat within the household context.  Rather, the home context merely attenuates or weakens considerations of
    retreat. The Crown submits that the trial Crown did not run afoul of these
    principles in suggesting in her cross-examination that the appellant had other
    options available to him such as screaming out, calling for help, and running
    out of the apartment, or in reminding the jury of these options in her closing
    argument. The trial Crown at no time suggested there was an obligation on the
    appellant to retreat from his home in order to avail himself of the defence of self-defence.
     Nor did the trial judge err in
    permitting the jury to consider as a factor the appellants ability to retreat.

Discussion

[37]

Retreat in the context of the law of self-defence
    reflects the principle that killing or seriously injuring another person should
    only be sanctioned as a last resort and should not be permitted if other
    reasonable options are available.  However, it is well-established at common law that different considerations
    apply where a person is attacked in his or her own home. These considerations
    are encapsulated in the rather archaic maxim a mans home is his castle. The origins of the so-called castle
    doctrine lie in Lord Cokes statement in
Semaynes
    Case
(1604), 77 E.R. 194 (K.B.), at p. 195:

That the house of everyone is to him as his castle
    and fortress, as well for his defence against injury and violence, as for his
    repose.

[38]

The maxim that
    a mans home is his castle has given rise to the principle that a person has
    the right to defend him or herself in his or her own home without the duty to
    retreat from the home in the face of an attack. As Cardozo J. put it in
People v. Tomlins
, 213 NY 240 (1914), at
    pp. 243:

It is not now, and never has been the law that a
    man assailed in his own dwelling, is bound to retreat.  If assailed there, he may stand his ground,
    and resist the attack.  He is under no
    duty to take to the field and the highways, a fugitive from his own home.

[39]

Many states in
    the

United States
have enacted legislation reflecting the castle doctrine, while in other states,
    the castle doctrine is applied by the courts.
[2]

[40]

In more recent
English case law
, on the other hand, while there is no specific requirement
    that a person must retreat in anticipation of an attack, the possibility of
    retreat is a factor for the jury to consider in assessing the reasonableness of
    self-defence even where the events take place in the accuseds own home: see
R.
    v. Bird
, [1985] 1 WLR 816
    (C.A.);
R. v. Zelda Mary M.
, [2007]
    EWCA Crim 376, at para. 28.

[41]

The rationale for not
    requiring a person to retreat when attacked or threatened in his or her own
    home is not difficult to discern. It was put this way by the Minnesota Supreme
    Court:  [T]he house has a peculiar
    immunity [in] that it is sacred for the protection of [a persons] family.... Mandating
    a duty to retreat for defense of dwelling claims will force people to leave
    their homes by the back door while their family members are exposed to danger
    and their houses are burgled:
State v. Carothers
, 594 NW (2d) 897
    (Minn 1999), at pp. 900-901 (citations omitted).

[42]

Ontario
    jurisprudence has recognized that in a claim of self-defence, extraordinary circumstances
    exist when a person is on his or her own property.  In
R.
    v. Antley
, [1964] 1 O.R. 545, the majority of this court held at para. 11 that
    an accused person who is assaulted while on his own property is not required
    to retreat from the home.
Rather,
    far from retreating he would have been entitled  to use such force as was
    necessary to remove the complainant therefrom.

[43]

In
Baxter
, Martin J.A. at p. 114 quoted
    with approval the comments of Lord Hewart of the English Court of Criminal Appeal
    in
R. v. Hussey
(1924), 18 Cr. App. R. 160:

In
Archibolds Criminal Pleaders, Evidence and
    Practice
... it appears that: In defence of a man's house, the owner or
    his family may kill a trespasser who would forcibly dispossess him of it, in
    the same manner as he might, by law, kill in self-defence a man who attacks him
    personally; with this distinction, however, that
in defending his home he need not retreat, as in other cases of
    self-defence, for that would be giving up his house to his adversary
. ... [Emphasis
    added.]

[44]

The facts in
Baxter
did not raise the issue of retreat
and so the decision is not
    otherwise relevant to the issue at hand. However, I would note that Martin J.A.
    in
R. v. Ward
(1978), 4 C.R. (3d) 190
    (Ont.

C.A.
)
    briefly dealt with retreat in the case of a woman charged with murdering her spouse
    in the circumstances of repeated domestic assault.  In a very brief oral decision, Martin J.A. stated
    at para. 5:
It is not correct to say as a matter of law that self-defence is only
    justified where there is no other reasonable means whereby a person can retreat.  He went on to note: The jury may well have
    concluded that the trial judge was summarizing the effect of s. 34, rather than
    merely indicating that the failure to retreat was a relevant item of evidence.

[3]

[45]

Martin J.A. did not indicate whether the events in
Ward
occurred in the appellants
    home.  Indeed, his reasons do not
    specifically indicate whether a failure to retreat is a relevant item of
    evidence where the accused is attacked, or reasonably apprehends an attack, in
    his or her own home.

[46]

In
R. v. Boyd
(1999), 118 O.A.C. 85, this
    court reviewed a trial judges instruction on the third element of the defence of
    self-defence in s. 34(2) of the
Criminal
    Code
in the context of a fatal stabbing that occurred in the appellants
    own home. The Crown at trial had cross-examined the appellant to demonstrate that
    he could have avoided the fatal confrontation with the deceased, who had broken
    into the appellants house and was removing items of his property. The Crown
    put to him the suggestion that it would have been appropriate for him to flee
    out the back door while the deceased was in the house.  The appellant resisted this suggestion.

[47]

The trial judge
    instructed the jury as follows:

... A failure to retreat, if there was an
    opportunity to do so, is only a factor to be considered in determining whether
    the accused believed on reasonable grounds that he could not otherwise preserve
    himself from death or grievous bodily harm.

[48]

This court held at
    para. 13 that the trial judge ought to have told the jury that the appellants
    failure to retreat could not assist them in determining whether the appellant
    had reasonable grounds to believe he could not otherwise preserve himself from
    death or grievous bodily harm:

It would have been better for the trial judge to
    avoid the use of the word retreat, which suggests an abandonment of the
    appellants home, and to refer specifically to the other steps which Crown
    counsel suggested the appellant could have taken to avoid the confrontation.
It would also have been appropriate for the
    trial judge to tell the jury that the appellants failure to flee his own
    residence, unlike his failure to lock the front door, could not assist the jury
    in determining whether the accuseds conduct met the objective component of the
    standard set down in s. 34(2)
.
[4]
[Emphasis added.]

[49]

The issue of the
    relevance of retreat in the context of an attack in ones own home has also been
    considered several times by the British Columbia Court of Appeal.  In
R.
    v. Proulx
(1998), 127 C.C.C. (3d) 511, at paras. 45-46, the court referred
    to its prior case law, which established that an accused need not consider
    fleeing his or her own home when attacked there by an assailant:

The appellant has directed us to
R.
    v. Jack
(1994), 91 C.C.C. (3d) 446 (B.C.C.A.), a case where the accused had
    taken a stand in his home against an assailant rather than escaping out the
    back door.
This Court held it to be a
    reversible error for the trial judge to fail to point out that the accused was
    not required to consider fleeing from his house.
In
R. v. Irwin
(1994), 49 B.C.A.C. 143 this Court said much the same
    thing: that
if with respect to s. 34(2)
    the judge had suggested to the jury that the appellant could have escaped, then
    that would have amounted to misdirection
. But a fact common to both of
    these cases is that the person claiming self-defence was in his residence at
    the time of the assault.
The law is clear
    that flight from one's own home is not a reasonable option for self-preservation,
    and that the defence of self-defence will still apply even if there is another
    way out of the house. The rationale is that one's home is already one's last
    line of defence against an assailant.

The principle from
Jack
and
Irwin
, then, is simply that
within one's home one need not retreat from
    an assailant before claiming the defence of self-defence. But although retreat
    may be an irrelevant consideration when one is attacked at home, it does not
    follow that it is also irrelevant when one is attacked elsewhere.
[Emphasis
    added.]

[50]

The Crown submits that the Court of
    Appeal in
Proulx
merely says that
    retreat
may
 be an irrelevant
    consideration when one is attacked at home, which implies that retreat may be
    relevant in the right circumstances. I think the Crowns proposed
    interpretation is belied by the courts earlier unqualified statement:
The law
    is clear that flight from one's own home
is
    not a reasonable option
for self-preservation, and that the defence of
    self-defence will still apply even if there is another way out of the house. The
    rationale is that one's home is already one's last line of defence against an
    assailant (emphasis added).

[51]

The British Columbia
    Court of Appeal returned to the retreat issue in
R. v. Abdalla

(2006), 209 C.C.C. (3d) 172.
    This case did not involve an attack in the accuseds home and the court was not
    purporting to decide whether retreat is a factor under s. 34(2) in such
    circumstances. However, the court at para. 22 said the following about the need
    to retreat when attacked in ones own home:

A person is entitled to save himself, but self-defence is not to be
    used as a cloak to cover what is really murder proceeding from
animus
. Self-defence must be genuine. The wording of the applicable
Criminal Code
sections makes this plain by reference to
    phraseology such as "no more force than is necessary" and "he
    cannot otherwise preserve himself". If there is a sensible opportunity to
    avoid further combat, that opportunity should be taken.
There are, of course, special rules relating to a person attacked in
    his home - the concept that "a man's home is his castle" pretty much
    attenuates any need to retreat in the sanctuary of one's home
. [Emphasis
    added.]

[52]

The Crown relies heavily on the emphasized
    passage in support of its view that retreat may be a factor where one is
    attacked at home. I do not think that the courts use of the phrase pretty
    much attenuates was intended to qualify the previous language in
Proulx
.  Indeed, at para. 24 in
Abdalla
,
    the court went on to say in regard to
Proulx
:

Finch J.A.
    (as he then was) said that,
aside from
    the case of persons in their own dwelling home
, retreat was a factor to be
    considered in self-defence.

[53]

Further support for the view that retreating
    from ones own home is not a factor for the jury to consider under s. 34(2) is
    found in the Supreme Court of Canadas majority decision in
R. v. Lavallee
, [1990] 1 S.C.R. 852. In
    that case, the court considered the issue of retreat in the circumstances of a
    case of domestic abuse.  More specifically,
Lavallee
considered the s. 34(2) requirement that a person who pleads
    self-defence must believe on reasonable grounds that it is not possible to
    otherwise preserve him or herself from death or grievous bodily harm. Wilson J.
    for the majority referred at p. 884 to: the obvious question ... if the
    violence was so intolerable, why did the appellant not leave her abuser long
    ago? In answering this question at pp. 888-889, she referred to the castle
    doctrine:

I emphasize at this juncture that it is not for the jury to
    pass judgment on the fact that an accused battered woman stayed in the
    relationship.  Still less is it entitled
    to conclude that she forfeited her right to self-defence for having done so. I
    would also point out that traditional self-defence doctrine does not require a
    person to retreat from her home instead of defending herself:
R. v. Antley
(1963), 42 C.R. 384 (Ont.

C.A.
).  A man's home may be his castle but it is also
    the woman's home even if it seems to her more like a prison in the circumstances.

[54]

Finally, I note that in an
    extensive article on the law of self-defence in

Canada
titled Applying the Law of
    Self-Defence, (2007) 12 Can. Crim. L. Rev. 25, Professor David Paciocco reviews
    the issue of retreat.  He explains that
    while there is no duty on an accused to retreat, the failure to do so will be a
    relevant factor in resolving the success of the claim of self-defence.  He then observes, citing
Lavallee
,
Abdalla
, and
Boyd
, that retreat from ones own home
    is not a relevant factor (at p. 57):

There are two important limits on when retreat
    should be considered a factor in making these necessity determinations. First,
    it should not be considered to be a factor in any case unless retreat was a
    realistic option. So, where it is proved that the accused is a battered woman
    who exhibits the kind of learned helplessness that reasonably makes retreat
    seem to be an unrealistic option, the failure to retreat may not be important.
Second, the adage that a man's or woman's
    home is their castle has led courts to accept that no one is expected to
    abandon their own home in order to avoid self-defence. The failure to retreat
    from one's own home is not, therefore, a factor that can assist in determining
    whether self-defence was necessary.
[Emphasis added. Citations omitted.]

[55]

Having regard to these authorities, I reject the Crowns
    position that while retreat from ones own home is not a necessary element to
    claiming self-defence, it may nonetheless be a factor for the jury to consider.
    By giving an instruction along the lines the Crown suggests, the danger would
    always remain that the jury would all too quickly leap from the factor of
    retreat to the inference that there is no entitlement to self-defence.  As the case law referred to above
    establishes, a jury is not entitled to consider whether an accused could have retreated
    from his or her own home in the face of an attack (or threatened attack) by an
    assailant in assessing
the
    elements of self-defence under s. 34(2).

[56]

In the appellants case, the trial judge did not make this
    clear to the jury. On the contrary, the jury was urged by the Crown to consider
    the appellants failure to retreat from his home as a factor going to the
    reasonableness of his response to the perceived attack by McNabb and the trial
    judge improperly permitted the jury to consider this option. The trial judge
    was obliged to instruct the jury that they should not consider retreat as a
    factor in determining whether the appellants conduct met the standard set out
    in s. 34(2).

Application of the curative proviso

[57]

As an alternative position,
    the Crown submits
that there was no substantial wrong or miscarriage of
    justice in how self-defence was left with the jury for two reasons. First, the
    appellants answers to the Crowns questions showed the impracticality of the
    Crowns suggestion that he retreat. Second, defence counsel in his closing
    address also addressed the impracticality of this option.

[58]

Again, I disagree with the Crowns position.
    Indeed, in my view, the Crowns argument that the option of retreating was
    impractical on the evidence in this case serves only to reinforce the need for
    the trial judge to have clearly instructed the jury that they should not
    consider this option.  In any event, the
    appellant acknowledged in his testimony that the front door to his apartment
    was only a few seconds away from the bedroom where the stabbing occurred, and
    the jury may have found that the appellant had a ready escape route by which he
    could have avoided the fatal confrontation.

[59]

In pointing to this error
    in the charge, I wish to be clear that the trial judge should not be faulted
    for his
s. 34(2)
    self-defence
instruction. As I previously noted,
when presented with a verbatim copy of the charge, neither trial
    counsel nor the Crown raised any objection to the charge.

[60]

The Crown submits that
    trial counsels views must be given considerable weight when considering the
    objections raised by the appellant for the first time on this appeal:
R. v
.
Polimac
, 2010 ONCA 346, at
    paras. 89 and 96.
According to the Crown, t
he defence position at trial

is a reason for this
c
ourt to invoke
the curative
proviso
in
s.
686(1)(b)(iii)
of the
Criminal Code
and to conclude that, despite the trial
    judge's erroneous instruction, no substantial wrong or miscarriage of justice
    occurred.

[61]

Defence counsels position at trial is
indeed
relevant in assessing the
    seriousness of the error,
but the
    failure to object is not
determinative when a misdirection or
    non-direction is raised as a ground of appeal.  A legal error remains a
    legal error even if counsel does not object or even supports the erroneous
    instruction:
Polimac
, at para.
    97.  Moreover, the failure to object is
    not
determinative of
whether
    the curative
proviso
should be
    applied
:  see
R. v. Hill
(1995), 102 C.C.C. (3d) 469 (Ont.

C.A.
), at pp.
    476-77.

[62]

In this case, I would not app
ly the
proviso
because a

jury
properly
    instructed
on the issue of retreat in
    the context of an alleged assault in the appellants own home could, acting
    reasonably, have reached
a different verdict absent the
    erroneous instruction.  As I have said,
    the jury may well have concluded that the appellant was not entitled to the
    defence of self-defence because his failure to retreat (or bolt, in the
    Crowns words) from his home rendered unreasonable his belief that he could not
    otherwise have saved himself from harm.

DISPOSITION

[63]

I would allow the appeal, quash the appellant's
    conviction, and order a new trial.

RELEASED:

SEP 14
    2011                                  H.S.
    LaForme J.A.

KF                                                   I
    agree K. Feldman J.A.

I
    agree Karakatsanis J.A.

[1]
The text of s. 34(2) appears in
    the next section of these reasons.

[2]

For a general discussion of
    the castle doctrine in the United States, see Benjamin Levin, A Defensible
    Defense?: Reexamining Castle Doctrine Statutes (2010), 47 Harv. J. on Legis.
    523 at 534-35. In some states, the castle doctrine has been extended so as to abolish
    the duty to retreat even when a person is attacked outside of the home:  see e.g., Fla. Stat. § 776.013(3).

[3]

The
    trial judge in his summary of the Crowns case in his charge to the jury had
    said:  The Crown says that the accused
    had ample time to get out of the apartment had she wanted, ample time to leave,
    but she didnt...

[4]
This court set aside the
    conviction on another ground.


CITATION: R. v. Gowan, 2011 ONCA 600

DATE: 20110920

DOCKET: C52646

COURT OF APPEAL FOR ONTARIO

Rosenberg, MacPherson and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael J. Gowan

Appellant

Mark Ertel, for the appellant

Kim Crosbie, for the respondent

Heard: September 9, 2011

On appeal from the conviction
          entered on July 19, 2010 by Justice Dianne M. Nicholas of the Ontario Court
          of Justice.

ENDORSEMENT

[1]

Michael Gowan appeals his conviction for the offence of mischief
    over $5,000.  The circumstances involved damage to property in which a company
    he owned had performed plumbing services.
He raises
    two main issues:

1.
        Concerning Mr. Gowans alibi defence, the trial judges reasons are
    insufficient.

2.
         The trial judge erred in her application of the test set out in
R. v.
    W.(D
.
)
, [1991] 1 S.C.R. 742.

[2]

With respect to the first point, Mr. Gowan submits that the trial
    judge erred in failing to explain how she dealt with the evidence upon which he
    relied to establish that he was not at the property when the crime was
    committed.  This evidence falls into two categories  first, evidence that
    relates to whether it was physically possible for Mr. Gowan to be at the
    property at the time it was damaged, and second, testimony of two witnesses
    that he was not, in fact, at the property at that time.

[3]

We do not accept this submission.
    The trial judges reasons demonstrate how she concluded that it was possible
    for Mr. Gowan to have made the calls he apparently made from his cottage at the
    time they were made, and be at the property when the crime was committed.  The
    reasons also set out the basis for her conclusion that the testimony of the two
    witnesses who stated that Mr. Gowan was not at the property at the relevant
    time, was not credible. These conclusions, together with the trial judges
    acceptance of the evidence of the two witnesses who placed Mr. Gowan at the
    scene of the crime witnesses whose testimony the trial judge accepted demonstrate
    how she arrived at her verdict.

[4]

With respect to the second point,
    Mr. Gowan submits that the trial judges comment that Pat Gowans evidence did
    not alter her view of the appellants credibility, shows that she failed to
    consider whether Pat Gowans evidence that his father was not at the property
    when the damage took place, raised a reasonable doubt.   The foundation of this
    submission is that the trial judge did not apply the second of the three
    essential steps set out in
R. v. W.(D.)
.

[5]

Again, we do not agree.  The
    critical question is whether the trial judge directed her mind to the issue of
    whether the defence evidence, considered in the context of the record as a
    whole, raised a reasonable doubt. This, she did.  She acknowledged the
R. v.

W.(D.)
principles, as clarified by the Crown. She then considered the
    defence evidence and concluded that it raised no reasonable doubt.

[6]

While counsel for Mr. Gowan on
    appeal did not press this point in oral argument, in his factum he argues that the
    trial judge erred in relying on inadmissible evidence, namely, the photo
    line-up.

[7]

In our view, the trial judge did
    not err in her approach to this evidence.  Given the wording she used in
    referring to this evidence, it is clear that she placed little, if any, weight
    on it.  Even if she attached some significance to the photo line-up evidence,
    we agree with the Crown that any minor amount of unwarranted weight would not
    have affected the result.

[8]

There was ample evidence found to
    be credible by the trial judge that is not in dispute in this appeal.  That
    evidence sufficiently supports the trial judges conclusion that the Crown had
    proven the case against Mr. Gowan beyond a reasonable doubt.

[9]

Accordingly, the appeal is
    dismissed.

M. Rosenberg J.A.

J.C. MacPherson J.A.

Gloria Epstein J.A.


CITATION:
R. v. Ibrahim, 2011
          ONCA 611

DATE:  20110923

DOCKET: C51731

COURT OF APPEAL FOR ONTARIO

Weiler, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Maher Ibrahim

Appellant

Diane Condo, for the appellant

Gavin MacDonald, for the respondent

Heard:  September 8,
          2011

On appeal from the convictions entered by Justice Diane M.
          Nicholas of the Ontario Court of Justice on October 30, 2009, and from the
          sentences imposed by Justice Nicholas on February 4, 2010.

ENDORSEMENT

[1]

Maher Ibrahim appeals his convictions of assault
    with a weapon and assault causing bodily harm and the sentences imposed in
    respect of those convictions.

A. Conviction Appeal

[2]

In support of his conviction appeal, the
    appellant says that the trial judge erred:

i.

in failing to grant his application under s.
    11(b) of the
Charter
for a  stay of proceedings for a breach of his
    right to be tried within a reasonable
    time;

ii.

in failing to apply the proper test on
    reasonable doubt to credibility  issues
    arising at the trial;

iii.

in improperly shifting the burden of proof from
    the prosecution to  the
    appellant; and

iv.

in failing to enter a stay of the assault with a
    weapon conviction on the basis of
    the principle in
R. v. Kienapple
,
    [1975] 1 S.C.R. 729.

[3]

We would not give effect to any of these grounds
    of appeal, save and except that related to the application of the principle in
Kienapple
.

[4]

On the s. 11(b) application, the trial judge was
    faced with a period of twenty-two and one-half months between the date the
    information was sworn and the hearing of the s. 11(b) application. She
    attributed seven and one-half months of this period to the inherent time
    requirements of the case, two and one-half months to the defence and twelve and
    one-half months to Crown or institutional delay. We find no error in her
    characterization of these time periods.

[5]

In her analysis of the s. 11(b) application, the
    trial judge took into account the relevant factors and made findings fully
    supported by the evidence adduced on the application.  She committed no error.

[6]

The submissions that the trial judge failed to
    apply the proper test of reasonable doubt on issues of credibility and that she
    improperly shifted the onus of proof are related.

[7]

The trial judge reviewed the evidence of the
    principal witnesses, the complainant and the appellant, in detail.  She rejected the appellants version of
    events as illogical and incredible in light of the injuries suffered by the
    complainant as disclosed by the photographs filed as exhibits. She considered
    the appellants testimony to be self-aggrandizing and beyond belief.

[8]

Towards the conclusion of her reasons, the trial
    judge made specific mention of the first two steps of
R. v. W. (D.)
, [1991] 1 S.C.R. 742, and expressly found that she
    neither believed nor had a reasonable doubt about the appellants guilt as a
    result of his testimony. She then concluded, on the whole of the evidence, that
    the Crown had proven all the essential elements of the offences charged beyond
    a reasonable doubt.

[9]

We are satisfied, after reading the trial
    judges reasons as a whole, that she was fully cognizant of the principles of
W. (D.)
, applied them correctly, and did
    not shift the onus of proof from the prosecution to the appellant.

[10]

The final ground of appeal against conviction
    invokes the
Kienapple
principle. The
    appellant says that both convictions arise from the same delict, thus one
    finding of guilt should be stayed under
Kienapple
.

[11]

We are satisfied that the same delict underlies
    both charges. The bodily harm the complainant suffered was caused by the
    appellants use of a shovel. It is the same unlawful use of the shovel that
    underpins the charge of assault with a weapon. Crown counsel acknowledges on
    appeal that the
Kienapple
principle
    requires the entry of a stay in this case. We agree.

[12]

In the result, the appeal from conviction of
    assault causing bodily harm is dismissed, but the conviction of assault with a
    weapon is set aside and a stay is entered on that charge.

B. Sentence Appeal

[13]

As to sentence, the appellant contends that the
    trial judge erred in failing to impose a conditional sentence for a first
    offender in the circumstances of this case. The sentence imposed exceeded what
    the Crown at trial proposed as a fit sentence. According to the appellant, the
    sentence does not reflect a proper application of the principles of
    proportionality and deterrence.

[14]

At trial, each party made its own submissions on
    sentence. There was no joint submission. The trial judge alerted counsel to the
    possibility that she would impose a sentence beyond the range of a custodial
    term of four to six months that had been proposed by the Crown. Trial counsel
    for the appellant (not counsel on appeal), who had sought a conditional
    sentence of twelve months, did not register any objection.

[15]

The appellant is a mature first offender who
    committed a serious assault on his spouse, causing her disfiguring injuries by
    striking her with a shovel. The assault occurred in the context of a crumbling
    and acrimonious domestic relationship. The sentencing principles that exert the
    greatest influence in determining the length of the sentence and the manner in
    which it should be served are denunciation and deterrence.  The sentence imposed in cases such as this must
    also promote a sense of responsibility among spousal abusers and an acknowledgement
    of the harm done not only to their immediate victims, but equally to the
    community at large.

[16]

A trial judge always retains an overriding
    discretion to accept or reject the recommendations of counsel about the
    sentence that should be imposed. This court has held that a trial judge does
    not err by exceeding the prosecutors suggested sentence, provided that the
    sentence is reasonable, even in the absence of reasons for departing from the
    prosecutors suggestion. In our opinion, the sentence imposed in this case was
    reasonable.  The fresh evidence does not
    alter our opinion.

[17]

For these reasons, the appeal against conviction
    is dismissed, except to the extent of entering a stay on the charge of assault
    with a weapon. Leave to appeal sentence is granted, but the appeal against
    sentence is dismissed.

Karen
    M. Weiler J.A.

E.A.
    Cronk J.A.

David
    Watt J.A.


CITATION:
R. v. Igbinedion, 2011 ONCA 571

DATE: 20110902

DOCKET: C47576

COURT OF APPEAL FOR ONTARIO

Rosenberg, Gillese and LaForme JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Odion Igbinedion

Appellant

Odion Igbinedion, in person

J. Wilkinson,  duty counsel, for the appellant

Deborah Krick, for the respondent

Heard: August 16, 2011

On appeal from conviction entered by Justice Carolyn Horkins
          of the Superior Court of Justice, sitting with a jury, dated May 31, 2007.

E N D O R S E M E N T

[1]

The appellant, with the assistance of duty counsel, appeals from his
    conviction for fraud by a court composed of Horkins J. and a jury.  At the
    conclusion of the oral hearing in this appeal we indicated that the appeal was
    allowed and a new trial ordered with reasons to follow.

[2]

While duty counsel raised several grounds of appeal we find it necessary
    to deal with only one issue, the charge to the jury on the use to be made of
    Detective Redicks evidence.  The case against the appellant was relatively
    straight-forward.  The Crown alleged that the appellant knowingly deposited a
    forged cheque into his business account.  Once the cheque had cleared, the
    appellant began to withdraw increasingly larger amounts of money from the
    account, until the bank realized that the cheque was forged.  At that point,
    the police were notified and when the appellant attended at the bank, he was
    arrested.

[3]

The appellants defence also should have been relatively
    straight-forward.  His position was that a business associate had given him the
    cheque to repay a debt and he believed the cheque was genuine.  Regrettably,
    the appellant, who was not represented by counsel, decided to make the manner
    in which the case was investigated an issue in the case.  Accordingly, he called
    the officer in charge of the investigation, Detective Redick, as his own
    witness.  He then proceeded to ask him a series of very ill-advised questions
    as to why the officer arrested him and why he did not conduct certain other
    investigations.  The result was that prejudicial opinion and investigative
    hearsay was placed before the jury.  Further, the trial judge failed to give
    the jury a limiting instruction as to the use to be made of that evidence and
    in fact invited the jury to use Detective Redicks opinion and other evidence
    to support the Crowns allegation that the appellant must have known that the
    cheque was forged.

[4]

Thus, the trial judge instructed the jury, in part, as follows:

The cheque cleared the five-day hold period, and
    then, as you will see from the account printout, a series of withdrawals
    started. Detective Redick told you that the withdrawal pattern in Mr.
    Igbinedions business account is typical of what occurs when a counterfeit
    cheque is deposited and a person wants to get the money. That person usually
    tests the water to see if they will get away with the fraud. They start with
    small withdrawals, and if there are no problems, the withdrawals will escalate.
    That is the type of activity that you will see when you look at the account
    printout.

And

The detective told you that he had investigated the
    names on the money orders, and his search told him that Wale Phillips was a
    person involved in another fraud and in possession of property obtained by
    crime.

[5]

Detective Redicks evidence was admissible for a very limited purpose.
    As the Supreme Court of Canada said in
R. v. Van
, [2009] 1 S.C.R. 716 at
    para. 26:

Lower courts have also decided that a trial
    judge who admits evidence of this kind must provide the jury with a limiting
    instruction as to its permissible and impermissible uses. The jury must be
    informed that they can only use evidence of this type for the limited purpose
    of setting out a narrative of the procedures that were followed in the
    investigation. They must be cautioned against relying on hearsay and opinion
    evidence that would be otherwise inadmissible in their determination of the
    guilt or innocence of the accused (
Dhillon
, at para. 51;
Mallory
,
    at para. 92).

[6]

There was no suggestion that Detective Redicks evidence was admissible
    as expert opinion evidence.  His evidence about Wale Phillips was hearsay,
    highly prejudicial and not admissible for its truth as an item of evidence from
    which the jury could find that the appellant knew the cheque was forged.  The
    jury should have been directed in the clearest of terms that they could not use
    Detective Redicks testimony about his investigation as evidence of guilt.

[7]

This is not a case where the provisio in s. 686(1)(b)(iii) of the
Criminal
    Code
can be applied.  Detective Redicks opinion gave the jury a clear
    route to conviction.  Without that opinion the case against the appellant was
    far from strong.  And, as we have said, the reference to Wale Phillips was
    highly prejudicial hearsay.

[8]

Accordingly, as indicated, the appeal is allowed, the conviction quashed
    and a new trial ordered.  We understand that the appellant has already served
    the conditional sentence imposed by the trial judge.  It will be for the Crown
    to determine whether in those circumstances the interests of justice require a
    new trial.  We wish to thank counsel for their very helpful submissions and
    especially Mr. Wilkinson who assisted the appellant as duty counsel.

Signed:           M. Rosenberg J.A.

E.E.
    Gillese J.A.

 H.
    S. LaForme J.A.


CITATION:
R. v. Jones, 2011
          ONCA 584

DATE: 20110909

DOCKET: C51604

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Antonio Jones

Appellant

Faisal Mirza, for the appellant

Megan Stephens, for the respondent

Heard: February 18, 2011

On appeal of the conviction entered on September 19, 2008 by
          Justice Nancy Mossip of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A.

INTRODUCTION

[1]

The appellant, Antonio Jones, was a drug dealer.  On September 18, 2004 Jones met up with Scott
    Laverriere, who was to pay him for an earlier drug debt and drive him to other customers
    in exchange for more drugs.  After the
    pair were seated in Laverrieres truck an altercation took place.   Jones
    took a metal bar and hit Laverriere in the head, causing irreversible brain
    damage.  Laverriere died after spending a
    year in the hospital on life support.

[2]

Jones was charged with second degree murder and tried
    before Mossip J. and a jury.  The Crown
    put forward a circumstantial case.  Jones
    testified and claimed that he acted in self-defence, striking Laverriere only after
    Laverriere viciously attacked him in the truck.  The jury found Jones not guilty of murder, but guilty of manslaughter.

[3]

Jones appeals his conviction.  His appeal turns on two photographs of the
    interior of the truck, which the Crown relied on to show that he did not act in
    self-defence.  Jones makes two
    submissions.

[4]

First, he says that the Crown, in his closing,
    misstated when the photographs were taken, that the trial judge inadvertently
    reinforced this misstatement in her charge, and that she later erred by failing
    to give the jury a correcting instruction.

[5]

Second, Jones says that after the jury asked a specific
    question about when the two photographs were taken, the trial judge erred by
    accepting the jurys verdict without insisting that it hear the answer to the
    question it had asked.  Jones submits
    that because of these two errors, he was deprived of a fair trial.  His conviction is therefore a miscarriage of
    justice.  He asks for a new trial.

B.

THE INCIDENT AND THE EVENTS
    LEADING UP TO IT

[6]

At the time of the incident, Jones was 37
    years old.  The incident itself occurred in
    the very early morning hours of September 18, 2004.

(a)
The
    preceding events

[7]

Sometime
    in the early morning on September 17th, Jones met his friend Donnell Newman at
    the East Mall in Etobicoke.  Newman and
    Jones had known each other for about 15 years.  They often got together to buy and sell drugs, especially crack cocaine.

[8]

When
    Newman saw him that morning, Jones was carrying a metal bar.  He told Newman that he had it for protection,
    as a few days earlier he had been kicked in the face and was in significant
    pain.

[9]

Jones
    and Newman spent the morning doing crack, and shuttling back and forth between the
    East Mall and the Willows Motel, as Jones dealt drugs.  On their second trip to the Willows they met
    up with Billy Chisholm, who often partied with Jones and who had a room at the motel.

[10]

After
    spending some time in Chisholms room, Newman and Jones left and went to a
    shelter where Jones picked up some of his belongings, including a
    knapsack.  He put the metal bar in his
    knapsack and took it with him.

[11]

Newman
    and Jones returned to Chisholms motel room, and the three of them did a toke
    of crack and drank beer.  Eventually
    Jones left and went to a bar.  He
    returned around 11:30 p.m.  Chisholm
    wanted more drugs.  Jones told him that
    he did not have anymore.  Chisholm would
    not take no for an answer and began arguing with Jones.

[12]

Around
    this time, Laverriere arrived at the Willows.  He had met Jones a few weeks before.  They had agreed at the time to meet at the motel on the night of the 17th.  Laverriere was to repay Jones a small drug
    debt he owed him and then drive him around while he dealt drugs.

[13]

Jones
    testified that he was anxious to get away from Chisholm, who continued to
    harass him for drugs.  He left the motel
    room with Newman and Chisholm following, and met Laverriere at his truck.  He was carrying his knapsack with the metal
    bar in it.

[14]

Laverriere
    got into the drivers seat of the truck and put his seatbelt on.  Jones got into the passenger seat.  Laverriere was a large man.  He was six feet two inches tall and weighed
    between 250 and 300 pounds.  Jones was
    slight.  He was five feet ten inches tall
    and weighed 155 pounds.

[15]

After
    some confusion, Laverriere found the money he owed Jones and gave it to
    him.  At this point Newman and Chisholm
    were still standing beside the truck; both wanted assurances that Jones would be
    returning with drugs.  Jones testified
    that he gave his knapsack with the metal bar in it to Newman as collateral so
    that Newman would know he would return.  Newman testified that he did not remember his friend giving him the
    knapsack.

(b)
The
    incident

[16]

The
    Crowns theory was that Laverriere tapped Jones on the head to get his
    attention, causing him unintended pain.  At the time Jones was already angry with Chisholm, who had been
    harassing him for more drugs, and with Laverriere, whom he believed had given
    him the runaround before repaying the drug debt.  According to the Crown, Jones reacted
    violently to the tap on his head, and whacked Laverriere in the face with the
    metal bar he had been carrying.

[17]

The
    Crown contended that Jones was guilty of second degree murder because when he
    hit Laverriere with the metal bar, he intended to cause him serious bodily
    harm, which he knew was likely to cause death, or he was reckless whether death
    ensued.

[18]

However,
    only Jones witnessed the incident, and he gave a very different account of what
    occurred.  He maintained that he hit
    Laverriere in self-defence as it was the only way he could get out of the
    truck.

[19]

Jones
    said that he sat crossways in the passenger seat. He was looking out the window
    watching Newman walk back to the motel when he felt a hit to the back of his
    head.  As he turned toward Laverriere,
    Laverriere slammed him in the side of the head with his fist.  Jones claimed that he started to blackout.  He then felt Laverriere grab his face,
    causing a sharp pain in his nose.  Jones
    started flailing around trying to move Laverrieres hand from his face.  When he was unable to do so, he began reaching
    around to find something to use to break Laverrieres hold.  He grabbed a hold of something metal and
    swung it as hard as he could.  He made
    contact and Laverriere let go.  Jones
    then turned around, opened the passenger door, and left.

(c)       The
    aftermath

[20]

After
    getting out of Laverrieres truck, Jones noticed that Newmans truck was still
    in the motel parking lot.  He found
    Newman and told him he fucking attacked me, grabbed me by the face and I hit
    him and then he  and ran away.  He then
    told Newman to pull out, pull out, pull out.  Newman began to drive and eventually dropped
    Jones off near the East Mall.

[21]

Jones
    claimed that he did not know what he did with the metal object he used to
    strike Laverriere.  He testified that he
    either dropped it in the parking lot or got rid of it.

[22]

Laverriere
    was very seriously injured, and although he was transported to the hospital
    within a few hours of the incident, his condition continued to
    deteriorate.  CT scans showed that
    Laverriere had suffered a penetrating traumatic injury to the head.  Though he was placed on life support, a year
    later he suffered a cardiac arrest.  He was
    then taken off life support, and died.

[23]

Doctor
    Chiasson, an expert in forensic pathology, testified that Despite the
    prolonged survival interval, death is nonetheless ultimately attributable to
    the head trauma which precipitated hospital admission. At trial, Jones argued
    that the cardiac arrest Laverriere suffered in the hospital caused his death.  However, Jones has not raised this argument
    on appeal.

C.

ANALYSIS

[24]

Jones'
    argument is twofold: (i) the two photographs were central to the jurys
    rejection of his claim of self-defence and therefore the trial judges failure
    to correct the misstatement about when they were taken was an error that
    prejudiced his defence; and (ii) the trial judge further prejudiced his defence
    by accepting the jurys verdict without requiring the jury to hear the answer
    to its question.

[25]

Before
    discussing these submissions, four things  on which both sides agree  should
    be said.  First, any misstatement, not
    only by the trial judge but also by Crown counsel, was entirely inadvertent.  Second, defence counsel did not object to
    Crown counsels closing or the trial judges charge on the photographs, and did
    not ask for a correcting instruction.  Third, the defence obtained no tactical advantage from its failure to
    object.  And fourth, defence counsel
    agreed with the way the trial judge dealt with the jurys question, including
    her decision to accept the jurys verdict without requiring the jury to hear
    the answer to its question.

I.

Did the trial judge err by
    failing to correct any misstatement about when the photographs were taken?

(a)

The evidence about the photographs

[26]

Constable
    Hulzebosch took the photographs in question.  He went to the crime scene around 11:30 in the morning on September 18,
    2004, about 11 hours after the incident had occurred.  He took many photographs of the interior of
    Laverrieres truck and its contents.  These photographs were entered as exhibits at trial.

[27]

Constable
    Hulzebosch testified that he began his examination on September 18, continued
    it for several days that month, and resumed it for several more days in October
    as well as for one day in November.  He
    did not testify when the photographs of the interior of the truck were
    taken.  However, it is evident from the
    photographs themselves that many photographs of the trucks contents were not
    taken at the crime scene, but at the Forensic Identification Services (FIS)
    examination bay.

[28]

The
    two most important photographs of the trucks interior were Exhibits 10(a) and
    24.  The jury specifically asked when
    these two photographs were taken.

[29]

Exhibit
    10(a) shows the front interior of the truck.  The ashtray is open and appears to be filled with cigarettes and
    ashes.  There do not appear to be any
    cigarettes or ashes on the front seat or in the rest of the interior visible in
    the photograph.

[30]

Exhibit
    24, together with several other photographs, shows a small pair of yellow scissors
    perched precariously on the console.

[31]

The
    importance of when these photographs were taken can be illustrated by considering
    two possible scenarios.  If these
    photographs were taken at the crime scene, this would lend support to the
    Crowns argument that no violent struggle occurred in the truck and therefore
    Jones did not act in self-defence.  The
    jury could infer that the scissors, and perhaps even the cigarettes, would not
    have remained in their position during a struggle.  The reliability of this inference is diluted,
    however, if the photographs were taken at the FIS examination bay.  The scissors may have moved during transit,
    and no one could say for certain what their position was when the incident
    occurred.

(b)

The Crowns closing

[32]

To
    refute Jones claim of self-defence, the Crown referred twice in his closing to
    the precarious position of the scissors inside the truck (as depicted in Exhibit
    24).  The first reference came early on
    when he reviewed the evidence of Constable Hulzebosch; the second, and briefer
    reference, came at approximately the halfway point of his address.

[33]

In
    his first reference, Crown counsel spoke about the scissors and the cigarettes
    in the ashtray.  He said:

Lets
    get back to PC Hulzebosch for a minute.  What else does he say about whats going on on the inside of that
    truck?  Well, we know that Jones hat is
    there.  I dont think thats really in
    much dispute.  The truck and the seat are
    messy but theyre relatively undisturbed.  The ashtray, there are photographs of it, helps you decide what happened
    and what didnt happen inside that truck.  If there was a struggle as Mr. Jones described to you, doesnt it make
    sense that the ashtray would have had some cigarettes knocked out of it or had
    been jostled and there would be ashes sprinkled about on the console area.  Remember the pair of yellow scissors that are
    hanging sort of precariously like this over the edge of the console?  Those are little tiny scissors, ladies and
    gentlemen.  They look like they came out
    of a sewing kit.  You might keep them in your
    kitchen drawer at home in the drawer that you have or have them in a tool
    box.  Theyre little tiny scissors.  If there was a violent struggle as Antonio
    Jones described, isnt there a pretty good chance that those scissors would
    have been dislodged from hanging halfway over the console and ended up
    somewhere on the floor?  There is no mess
    which is consistent with the description of what Antonio Jones says happened
    inside that truck.  You dont have
    cigarettes butts strewn all over the place.  This should tell you there was not a big struggle like Jones described
    in that truck.

It
    should also tell you what happened inside that truck happened relatively
    quickly.

[34]

In
    his second reference, he focused on the scissors:

Never
    once in his evidence did you hear Jones say he tried to move Scotts hand from
    his face by grabbing at it or swatting it or kicking him away.  Ladies and gentlemen, he made no attempt to
    fight back other than to reach for the bar.  But on Jones own evidence the actions of Scott were very violent, but
    the console isnt disturbed, the yellow scissors are still sitting precariously
    teetering over the edge.

[35]

Do
    these passages contain a misstatement about when the photographs showing the
    scissors and cigarettes were taken?  There is no overt misstatement.  Crown counsel did not say that the photographs were taken at the crime
    scene.  The most that can be said is that
    he implied the photographs showed the trucks interior immediately after the
    altercation between Jones and Laverriere.  For the purpose of my analysis, I will assume that a reasonable juror
    would have taken that implication from the Crowns comments.

(c)

The trial judges charge

[36]

In
    her review of the evidence of Constable Hulzebosch, the trial judge also
    referred to the photographs of the trucks interior:

A
    lot of the evidence of Constable Hulzebosch was given through photos that were
    taken by him and his colleagues when he attended at the scene on September 18th.  He detailed a series of photographs and went
    through them with us both at the scene and Mr. Laverrieres truck.  Numerous photographs taken of the truck both
    outside and inside were filed as exhibits, and these photographs will be with
    you in your jury room.

[37]

The
    trial judge discussed the photographs generally, and did not specifically refer
    to the two in question.  Nonetheless, she
    too, perhaps even more explicitly than Crown counsel, suggested that the
    officers took all the photographs at the crime scene the day after Laverriere
    was assaulted.  It could be said that she
    reinforced the misleading impression left by the Crowns closing.  The question on this ground of appeal is
    whether the trial judge erred by failing to correct this misstatement or
    misleading impression?

(d)       Did the trial judge err by failing to correct the misstatement
    about when the photographs were taken?

[38]

A
    trial judge does not have an inflexible obligation to correct every
    misstatement of the evidence by counsel.  Indeed, typically misstatements of the evidence are less serious than
    misstatements of the law because invariably counsel, and certainly the trial
    judge, will tell the jury that its recollection of the evidence counts, not the
    lawyers or the judges recollection.  Here, both Crown counsel and the trial judge emphasized this point to
    the jury.  The trial judge instructed the
    jury as follows:

It
    is my duty to review what I think are the important parts of the evidence and
    relate it to the issues that are yours to decide.  In doing that, I may overlook evidence you
    think important or mention evidence you think is insignificant.  I may make a mistake about what a witness
    said while testifying.  My references to
    the evidence are only to help you remember it and to show you how it relates to
    the issues in this case.  If my memory of
    the evidence is different from yours, its yours, not mine, that counts.  You find the facts and base your decision on
    your memory of the evidence, not mine nor that of counsel.

[39]

Moreover,
    I find it difficult to criticize the trial judge for failing to correct a
    misstatement that she did not appreciate had been made, and that no one alerted
    her to.  Still, this court must assess
    the impact of the misstatement or misleading impression.  If the impact is serious enough that it may
    have caused a miscarriage of justice, then this court must intervene and order
    a new trial.

[40]

Assuming
    that the jury was left with a misleading impression about when the photographs
    were taken, I cannot say it had no impact or was irrelevant.  The Crown did rely on the photographs, and
    implicitly when they were taken, to refute Jones claim of self-defence.  However, at its highest, the impact was quite
    modest, and did not legally require a correcting instruction.  I say that for the following four reasons.

[41]

First,
    as I have already noted, both Crown counsel and the trial judge told the jury
    that it was its recollection of the evidence that mattered.

[42]

Second,
    defence counsel did not object to Crown counsels closing or the trial judges
    charge on the photographs, and did not ask the trial judge to correct the
    misstatement.  A failure to object,
    especially when it is not for a tactical advantage, does not preclude this
    court from intervening on appeal to prevent an injustice.  There is good reason why this is so.  Any advocate, no matter how skilled or
    experienced, may on occasion overlook a material point during the course of a trial.  Still, a failure to object is at least some indication
    that the alleged error was not overly prejudicial or problematic.

[43]

Third,
    the photographs played a relatively minor role in the Crowns argument to the
    jury that Jones did not act in self-defence.  The Crown made far more compelling arguments, which included the
    following:

·

Jones
    admitted that he could have gotten out of the truck after Laverriere first hit
    him;

·

Jones
    admitted that Laverriere had no reason to attack him; and indeed, it made
    little sense for Laverriere to do so because Jones had already assured him that
    he had the drugs Laverriere wanted;

·

Although
    Jones claimed to have been in a violent fight, his friend Newman testified that
    Jones had no fresh injuries and did not complain of any new injuries when
    Newman saw him after the incident;

·

Newman
    also did not support Jones on key parts of Jones account.  For example, Jones claimed that Laverriere
    attacked him and that he was in a fight for his life.  Newman, however, never said Jones told him
    that he was in a fight for his life when Laverriere attacked him;

·

In
    addition, Newman lent no credence to Jones testimony about the knapsack with
    the metal bar in it.  Jones testified
    that he gave the knapsack to Newman but Newman did not remember that he did so;
    and

·

It
    was not reasonable to think that Laverriere could have mounted a violent attack
    on Jones while seated in the driver seat of his truck with his seatbelt on.

[44]

Fourth,
    the jury itself recognized the problem with the Crowns closing.  It asked a question about when the two
    photographs were taken.  It then
    delivered its verdict without waiting for its question to be answered.  As I will discuss, we can safely  assume that by delivering its verdict, the
    jury either figured out the answer to its question or decided that it no longer
    needed its question answered.

[45]

For
    these reasons, a correcting instruction was not required and its absence did
    not prejudice Jones defence.  I would
    not give effect to this ground of appeal.

II.

Did the trial judge err by
    accepting the jurys verdict without requiring it to hear the answer to its
    question?

[46]

To
    put this issue in context, a review of the chronology of what occurred is
    necessary.

[47]

The
    jury began deliberating just before 6 p.m. on September 18, 2008.  The next day, at 2:25 in the afternoon, the
    jury asked a single question: Could you please confirm that
    exhibits/photographs 10(a) and 24 were taken at the crime scene?  As I have said, these two photographs showed
    different views of the trucks console.  One  Exhibit 24  showed the scissors the Crown had referred to in
    closing.

[48]

Neither
    the trial judge nor counsel had an immediate answer to the question.  Sensibly, the trial judge called the jury
    back  at 2:45 p.m.  to tell it that getting an answer to its question might
    take some time.  She, along with counsel,
    would have to listen to Constable Hulzeboschs evidence.  She encouraged the jury to set this issue
    aside and move on to something else, and added, Please know that we are
    working on it as fast as we can.

[49]

During
    counsels submissions to the trial judge on how to answer the question,
    everyone came to appreciate that the two photographs were taken after the truck
    was towed away, and not at the crime scene.  Eventually, the trial judge formulated an answer to the jurys question:
    I cannot confirm that the photographs were taken at the crime scene.

[50]

The
    answer itself is not germane because it was never given.  At 4:15 p.m.  or 90 minutes after the trial
    judge told the jury they were working on an answer to its question  she was
    informed that the jury had reached a verdict.

[51]

Before
    accepting the verdict, the trial judge briefly recessed to give counsel an
    opportunity to consider whether she could accept the verdict before answering
    the jurys question.  She even drew their
    attention to Cory J.s reasons in
R. v.
    Sit
(1989), 47 C.C.C. (3d) 45 (Ont. C.A.), where he approved of a trial
    judges decision to accept a jury verdict without answering the jurys
    question.

[52]

After
    considering the matter, both Crown and defence agreed that the trial judge
    could accept the jurys verdict.  Both
    counsel also agreed with the trial judges proposal to give the jury an
    opportunity to have its question answered.  She said to the jury:

Okay.
    Thank you.  Have a seat.  Thank you, members of the jury.  We understand that you have reached a
    verdict.  By that we also understand that
    you no longer needed the answer to the question that you had sent us.  We were prepared with an answer just as we
    were getting your note.  If we are wrong
    in that assumption, you should advise us.  If you want some time to think about that, you
    may step outside and think about it.  If
    we are not wrong in that assumption that you no longer needed the answer to the
    question in order to reach your verdict, then the foreperson should give the
    verdict to the CSO.  Okay.  Poll the jury.  Okay.  The Registrar will poll you now.

[53]

The
    jury did not ask that its question be answered.  It delivered its verdict, finding the appellant guilty of manslaughter.

[54]

Now,
    on appeal, the appellant submits that the trial judge erred by accepting the
    verdict without first requiring the jury to hear the answer to its
    question.  This submission is, of course,
    contrary to the position of defence counsel at trial.

[55]

I
    do not agree with the appellants submission.  This court observed in
R. v.
    Pecoskie
(2002), 170 O.A.C. 396, at para. 13: As a general rule, it should
    be a very rare case indeed in which an appellate court would decide that a
    trial judge had committed a reversible error on a matter which was expressly
    considered and agreed to by both counsel and the trial judge.

[56]

This
    is not one of those very rare cases.  Indeed, I find it hard to see what the trial judge did wrong.  She gave counsel an opportunity to consider
    what to do.  She proceeded in the manner
    she did with their agreement.  She gave
    the jury an opportunity to have its question answered before delivering its
    verdict.  And, although the jury did not
    explicitly advise the trial judge it no longer needed its question answered
    as the jury in
Sit
did  it did so
    implicitly by giving its verdict.

[57]

I
    agree with the following statement in para. 50 of Ms. Stephens Crown factum:
    It would not have been appropriate for the trial judge to question why the
    jury no longer wanted its question answered or to require the jury members to
    hear an answer when they had indicated it was not needed.

[58]

The
    jury may have had any number of reasons why it did not need an answer to its
    question.  Likely, the jury resolved the
    question from its own collective memory, or decided that the answer was no
    longer needed for its verdict.  I have no
    basis to second guess its decision to deliver its verdict.

[59]

The
    trial judge acted appropriately in accepting the jurys verdict.  I would not give effect to this ground of
    appeal.

D.

CONCLUSION

[60]

The
    trial judge did not err in failing to correct a misstatement in the Crowns
    closing submission.  Nor did she err in
    accepting the jurys verdict without requiring it to hear the answer to its
    question.

[61]

I
    would dismiss Mr. Jones appeal from his conviction for manslaughter.

RELEASED:  Sept. 9,
    2011

JL                                                                          John
    Laskin J.A.

I
    agree K. Feldman J.A.

I
    agree Robert P. Armstrong J.A.