COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Asmann, 2017 ONCA 659

DATE: 20170817

DOCKET: C60715

Doherty, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Asmann

Appellant

Richard Litkowski, for the appellant

Andreea Baiasu, for the respondent

Heard:  August 16, 2017

On appeal from the conviction entered by Justice E.
    Minden of the Superior Court of Justice on May 13, 2015, and the sentence
    imposed on May 14, 2015.

APPEAL BOOK ENDORSEMENT

[1]

On the evidence accepted by the trial
    judge, the BB gun fell within the definition of firearm in s. 2 of the
Criminal
    Code
.  That definition applies to the entire Act.
    There is no principled basis upon which to read the word firearm in the
    robbery provision (s. 344) as not including a device that falls within the
    definition of firearm in s. 2.  The other firearm-related definitions and
    provisions in the
Criminal Code
do
    not come into play.

[2]

The conviction appeal is dismissed.

[3]

The total sentence imposed was not
    unfit.  The trial judge fully appreciated the factors relevant to sentencing.
    In his usual fashion, he gave those factors full and sensitive consideration.
    We would not interfere.

[4]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boukhalfa, 2017 ONCA 660

DATE: 20170821

DOCKET: C59089

Feldman, Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Boukhalfa

Appellant

Michael W. Lacy, for the appellant

Benita Wassenaar, for the respondent

Heard: November 30, 2016

On appeal from the conviction entered on March 7, 2013, and the
    sentence imposed on May 27, 2013 by Justice Maureen D. Forestell of the Superior
    Court of Justice, sitting with a jury.

Watt J.A.:

[1]

Shortly before Christmas a few years ago, John Boukhalfa killed his
    mother. He hit her on the head with a baseball bat. And stabbed her with a
    knife. Repeatedly.

[2]

John Boukhalfa made a clumsy effort to clean up the scene, a cluttered,
    unsanitary, hoarders nest of an apartment he and his mother had shared for
    about two decades. He did not call 911. Instead, he collected up some of his
    money and left the apartment.

[3]

A few hours later, two police officers doing routine traffic
    enforcement, saw John Boukhalfa walking aimlessly on the median of a major
    thoroughfare. Once they determined Boukhalfas true identity, the officers
    arrested him for breach of a conditional sentence order by which he was then bound.
    An officer saw blood on Boukhalfas clothes and hands. Police went to the
    apartment. There they found the deceased. And arrested John Boukhalfa on a
    charge of second degree murder.

[4]

At trial, the single issue for the jury to determine was the legal
    character of the unlawful killing of the deceased. The Crown said it was
    murder. The defence contended it was manslaughter. The jury concluded that John
    Boukhalfa committed murder.

[5]

John Boukhalfa appeals. He says that his conviction is flawed because
    the trial judge made several mistakes in her charge to the jury and also
    allowed the Crown to introduce evidence that should have been excluded. In
    addition, he says the period of parole ineligibility imposed by the trial judge
    was harsh and excessive.

[6]

These reasons explain why I would dismiss both appeals.

The Background Facts

[7]

The allegations of error are best understood when situated in the
    circumstances in which they occurred, as described by their only survivor
    John Boukhalfa  and discovered in the police investigation that followed.

The Principals

[8]

John Boukhalfa was 26 years old when he killed his mother. He was 6
    feet, 2 inches tall and weighed 200 pounds. His mother was 62 years old, 4
    feet, 9 inches tall and weighed 186 pounds.

[9]

During and following completion of high school, John Boukhalfa began
    drinking and experimenting with drugs. He got into some trouble and accumulated
    convictions for drug offences. After high school, he worked as a
    doorman/bouncer.

[10]

From his early years, John Boukhalfa suffered from the effects of a
    mental illness. He attempted suicide on a few occasions. He was prescribed
    anti-psychotic medication. His mother controlled the medication and supplied it
    to him as prescribed.

[11]

Several months before he killed his mother, John Boukhalfa was arrested
    on some drug offences. He was released on bail. He resolved to turn his life
    around. To eat healthily. To go to the gym. To go back to school. He enrolled
    in a broadcasting program at a local community college. He survived the first
    cut on his college rugby team.

[12]

Antonia Zammit was John Boukhalfas mother. During various times in her
    life, she had worked at different jobs. In later years, she lived on government
    assistance and accumulated substantial debt. She was a hoarder, reluctant to
    throw anything out. When her son suggested that he might leave home to attend
    university, she threatened suicide. John Boukhalfa believed that his mother suffered
    from a mental illness.

The Mother-Son Relationship

[13]

John Boukhalfas parents separated when he was very young. Since
    elementary school, he lived with his mother. For the past 20 years, they lived
    together in the apartment building where she died. For the most part, they were
    devoted to each other. Occasionally, however, their relationship became
    strained.

[14]

By all accounts, their apartment was a mess. Cluttered. Unsanitary.
    Chock full of things Ms. Zammit had collected and refused to throw out, despite
    her sons entreaties to do so. John Boukhalfa tried to convince his mother to
    move out of their apartment to a better, safer place that they could afford
    because of money he had received in settlement of a motor vehicle accident in
    which he had been injured. All to no avail.

[15]

In the weeks preceding the deceaseds death, John Boukhalfa had been
    feeling pretty stressed out. Pressures from work, school and home weighed
    down on him. He stopped taking his prescribed medication. He felt better
    without it.

The Neighbours Evidence

[16]

Stephanie Johnston had lived across the hall from John Boukhalfa and his
    mother for about ten years. She did not know their names and had never
    socialized with them beyond a brief Hello to Ms. Zammit. She had never seen
    any visitors enter or leave their apartment.

[17]

Over the years, Ms. Johnston had heard screaming and, occasionally,
    swearing coming from the apartment. The voice was that of a young man, but she
    could not identify the speaker or describe the context in which the screaming
    had occurred. As the years passed, the frequency of these outbursts diminished,
    from every few months to a few times per year.

[18]

Ms. Johnston was not around much during the year in which Antonia Zammit
    died. When interviewed after the death of the deceased, Ms. Johnston told
    police that she had heard the male voice say Leave me alone and Fuck off.
    At trial, she could not recall making these comments to the police although she
    had tried her best to be truthful with them.

The Killing of the Deceased

[19]

John Boukhalfa is the only survivor of the altercation that resulted in
    the death of Antonia Zammit. He was interviewed by police the day following his
    arrest. Part of the interview was admitted as evidence at trial where Boukhalfa
    also testified in his own defence.

[20]

John Boukhalfa explained that he had breakfast with his mother in their
    apartment on the morning of the day he killed her. She gave him his medication.
    He took it. He planned to meet his rugby teammates at Christie Pits, but could
    not find them when he arrived there. He went to the gym, but felt unwell.
    Instead of going to the hospital  CAMH  he went home so that he could get
    another dose of his medication from his mother.

[21]

John Boukhalfa asked his mother for another pill. She refused his
    request. He repeated his request. And she, her refusal.

[22]

In his police interview, John Boukhalfa explained that he and his mother
    began to argue about issues of long-standing between them. The filthy and
    cluttered state of their apartment. Her prior suicide attempts. The unsafe
    nature of the place where they lived. His wish to move elsewhere and to pay for
    the cost of doing so. The deceased threatened to kill Boukhalfas half-brothers
    and his father. She had a knife in her hand. She lunged at him. She tried to
    stab him, then succeeded in cutting his hand and fingers.

[23]

John Boukhalfa was surprised by his mothers attack. He told police that
    he snapped as a result of years of frustration. It was either kill or be
    killed. He did not want his mother dead.

[24]

At trial, Boukhalfa admitted that he had hit his mother with a baseball
    bat. He could not recall when he so in relation to the stabbing or when he got
    the bat, but he denied hitting her on the back of the head. He said he used
    either one or two knives to stab her.

The Injuries to the Deceased

[25]

The deceased suffered a multitude of sharp force injuries, both stab and
    incised wounds, to her head and neck. One of two injuries to the back of her
    head could have resulted from a blow of the baseball bat, or could have been
    caused by her head striking a hard surface. The deceased did not have a skull
    fracture or a brain injury. The examining pathologist could not determine the
    sequence in which the various injuries and wounds had been suffered.

[26]

John Boukhalfa inflicted at least 25 sharp force injuries to his
    mothers neck. Their depth varied from 1 to 6.5 cm. Two wounds perforated her
    left jugular vein. She was stabbed four times in the torso and once in the
    back. She died from stab wounds to her neck.

The Post-Offence Conduct

[27]

For a few hours, John Boukhalfa remained in the apartment, his mothers
    body on the floor. He searched around for his medication, but could not find
    it. He did not call 911. As he explained subsequently, it was too late to do
    so. His mother was dead on the kitchen floor.

[28]

While in the apartment, Boukhalfa tried to wash the bloody knives and
    clean up other areas of the apartment. He put the knives in his gym bag. He
    acknowledged later that he did a poor job of cleaning up the apartment. Police
    found nothing of forensic value outside the apartment.

The Arrest of John Boukhalfa

[29]

Shortly before midnight, several hours after he had killed his mother,
    police officers on routine traffic enforcement saw John Boukhalfa walking
    haphazardly in the central median of Lakeshore Boulevard. As they approached
    Boukhalfa, the officers noticed blood on his left hand. Boukhalfa explained
    that he had been in a fight the previous night. When asked his name, Boukhalfa
    lied. The officers noticed Boukhalfas bulging pockets and asked him to empty
    out their contents. He produced a large amount of cash. An officer noticed some
    identification, picked it up and verified it through the police communication
    system. They then arrested Boukhalfa for breaching his conditional sentence
    order. His arrest for murder followed discovery of his mothers body at their
    apartment.

The Condition of John Boukhalfa

[30]

Arresting officers noticed cuts on his left hand, on the inside and
    outside of his finger and on his thumb. Some were defensive wounds. Others
    could have resulted from slippage of the knife used to stab his mother;
    self-inflicted wounds as he stabbed the deceased; or cuts inflicted by the
    deceased. He also had a single, but not serious cut to his stomach.

The Positions at Trial

[31]

The issue framed for the jurys determination was the legal character of
    the unlawful killing of the deceased. Was it second murder degree as the Crown
    contended, or manslaughter as the defence submitted?

[32]

The trial Crown rejected any suggestion that the deceased attempted or
    actually stabbed Boukhalfa and portrayed him as fed up and frustrated with his
    living conditions and his mothers refusal to give him more prescribed
    medication that he felt he needed. He stabbed his mother to death in
    circumstances that amounted to second degree murder.

[33]

Trial counsel for Boukhalfa did not concede, but did not vigorously
    contest the intentional nature of the unlawful killing of the deceased. He
    urged the jury to find Boukhalfa not guilty of murder, but guilty of
    manslaughter on the basis of the statutory partial defence of provocation.

[34]

Neither self-defence nor lack of criminal responsibility on account of mental
    disorder was in play at trial.

THE GROUNDS OF APPEAL

[35]

On the appeal from conviction, John Boukhalfa (the appellant)
    complains not only about misreception of evidence, but also about errors in the
    charge to the jury and in responding to a question asked by the jury during
    deliberations. I would paraphrase the grounds of appeal he advances
[1]
as errors in:

i.

instructing the jury on the relevance of mistake to the statutory
    partial defence of provocation in responding to an in-deliberation question by
    the jury;

ii.

instructing the jury on provocation;

iii.

editing the police interview of the appellant and explaining its use to
    the jury; and

iv.

admitting the evidence of Stephanie Johnston about what she heard said
    by a male voice in the appellants apartment.

[36]

On the appeal from sentence, the appellant contends that the period of
    parole ineligibility fixed by the trial judge is harsh and excessive.

THE APPEAL FROM CONVICTION

Ground #1: The Jury Question

[37]

During deliberations, the jury asked a question. The judges response,
    the appellant contends, was wrong. Prior to a canvass of the arguments advanced
    and the principles that control our decision, it is helpful to begin with the
    question, the positions of the parties that informed the judges response and the
    judges response.

The Jury Question

[38]

The question posed by the jury was this:

Your Honour, if we agree to find that the mother stabbed John
    Boukhalfa accidentally, is that considered a wrongful act?

The Positions of Counsel at Trial

[39]

Trial counsel for the appellant took the lead in discussions about how
    the jurys question should be answered. In his view, what was critical was what
    was in the appellants mind, not the mind of the deceased. He argued that
    provided the appellant reasonably believed that the deceaseds stab was
    intentional, that was a wrongful act for the purposes of the provocation defence.
    He framed the issue as whether the appellant mistakenly believed, as an
    ordinary person in the same circumstances would, that the stabbing was
    intentional on the part of the deceased:

THE COURT: The issue for them to decide is, did Mr. Boukhalfa
    mistakenly believe that the stabbing by Ms. Zammit was intentional

[DEFENCE COUNSEL]: Right.

THE COURT: and would an ordinary person in the same
    circumstances have mistakenly believed that the stabbing was intentional.

[DEFENCE COUNSEL]: Exactly.

THE COURT: So thats what I need to tell them.

[DEFENCE COUNSEL]: Exactly.

The Judges Answer

[40]

Trial counsel on both sides agreed with the trial judges response to the
    jurys question:

In determining whether there was a wrongful act or insult, what
    was in the mind of Ms. Zammit, or Ms. Zammits intention, is not relevant.

The questions for you to determine, if you find that the
    stabbing was accidental, are:

1)

Did Mr.
    Boukhalfa honestly but mistakenly believe that his mother stabbed him
    intentionally; and

2)

Would an
    ordinary person in the same circumstances have mistakenly believed that the
    stabbing was intentional.

The Arguments on Appeal

[41]

The appellant makes two points in support of this ground of appeal. The
    first has to do with the correctness of the trial judges answer, the second
    with its completeness.

[42]

First, correctness. The appellant says that, despite the agreement of
    trial counsel, the trial judges response to the jurys question was legally
    wrong and beyond redemption by s. 686(1)(b)(iii). The error, the appellant
    submits, consisted of imposing a requirement that a reasonable person in
    equivalent circumstances would make the same mistake as the appellant. The
    reasonable person or objective standard only applies to an accuseds reaction
    to the provocative words or event, not to the accuseds perception of an event
    as provocative.

[43]

The error here occurred, the appellant continues, because counsel considered
    the decision of the Alberta Court of Appeal in
R. v. Hansford
(1987),
    33 C.C.C. (3d) 74 accurately stated the law and persuaded the judge to the same
    view. But
Hansford
was wrongly decided and is inconsistent with
    judgments of the Supreme Court of Canada, which make it clear that mistakes
    must be honestly made, but need not be reasonable. To add an objective
    requirement artificially limited the provocation defence advanced by the
    appellant and caused a miscarriage of justice.

[44]

Second, completeness. The appellant submits that even if the judges
    answer to the jurys question was correct, the trial judge was required to
    provide a review of the evidence relevant to the issue raised by the jurys
    question. Her failure to do so reflects legal error.

[45]

The respondent characterizes the judges response to the question, which
    duplicated the submissions of counsel, as at once correct and complete.

[46]

The respondent acknowledges that the jury was entitled to an answer to
    their question. That said, as the sole surviving witness to the events
    surrounding the death of the deceased, the appellants account  that the
    deceased lunged at him  excludes any role for mistake. The judges response
    to the jury question was legally correct. But it exceeded the appellants entitlement
    by providing a basis for the provocation defence founded on a mistake of which
    there was no evidence.

[47]

Further, the respondent continues, the judges answer was responsive to
    the jurys question. That is all that was required. The question did not seek a
    review of the evidence that was relevant to it, nor was it a reasonable
    inference from the question that such a review was a necessary component of the
    correct response.

The Governing Principles

[48]

The definition of the statutory partial defence of provocation that
    governed the jurys determination at trial was the former s. 232(2):

A wrongful act or insult that is of such a nature as to be
    sufficient to deprive an ordinary person of the power of self-control is
    provocation for the purposes of this section if the accused acted on it on the
    sudden and before there was time for his passion to cool.

[49]

Section 232(2) defines what constitutes provocation sufficient to reduce
    an unlawful killing from murder to manslaughter. Fundamental to the
    availability of the defence in this case is a triggering event that falls
    within the statutory phrase a wrongful act or insult. At the very least, a
    wrongful act includes conduct that amounts to an offence, such as an assault,
    whether actual or apprehended under ss. 265(1)(a) and (b) of the
Criminal
    Code
.

[50]

But, on its own, a wrongful act or insult will not constitute
    provocation. The wrongful act or insult must be of a specific quality or
    nature, that is to say, of sufficient gravity or significance to deprive an ordinary
    person of the power of self-control. This is the objective element or test, the
    ordinary person standard:
R. v.
Cairney
, 2013 SCC 55, [2013]
    3 S.C.R. 420, at para. 33;
R. v. Tran
, 2010 SCC 58, [2010] 3 S.C.R.
    350, at para. 25;
R. v. Thibert
, [1996] 1 S.C.R. 37, at para. 4;
R.
    v. Hill
, [1986] 1 S.C.R. 313, at para. 16.

[51]

At first blush, inclusion of an objective element or standard in the
    definition of provocation seems paradoxical. After all, the ordinary or
    reasonable person does not lose control, much less kill a fellow human being.
    But the partial defence of provocation recognizes human frailties and that
    those frailties can lead to violence, fatal violence:
Cairney
, at
    para. 36. The objective element or standard represents Parliaments attempt to
    weigh in balance those very human qualities which sometimes lead people to act
    irrationally and impulsively, on the one hand, and the need to protect society
    by discouraging acts of homicidal violence, on the other:
Tran
, at
    para. 4.

[52]

This ordinary person requirement limits the availability of the
    defence of provocation. It does so to ensure that the criminal law encourages
    reasonable and responsible behaviour. But a rigid and abstract application of
    this objective standard would run the risk of rendering this defence, which is,
    after all, a concession to human frailty, unavailable in almost all situations.
    And so it is that we apply this objective standard in a contextual way:
Cairney
,
    at paras. 38, 40 and 41;
Thibert
, at paras. 14, 18 and 19.

[53]

It should come as no surprise that a defence based on a loss of control
    would make allowances for mistaken perceptions about the source and nature of
    the conduct that gives rise to the loss of control.

[54]

In
R. v. Manchuk
, [1938] S.C.R. 18, the court acknowledged that
    an accused who intentionally killed another in the mistaken belief that the
    other participated in the wrongful act or insult that caused the accused to
    lose self-control may invoke provocation to reduce the crime from murder to
    manslaughter:
Manchuk
, at pp. 19-20.

[55]

In
Hansford
, the appellant argued that the trial judge had
    erred in law in failing to instruct the jury that the provocation defence
    remained open to an accused who acted on a mistaken belief about the nature of
    conduct, which if true, would have amounted to a wrongful act for the
    purposes of the statutory partial defence of provocation. The court concluded
    that mistake of fact could be relevant to the objective branch of provocation.
    This is so because it is open to an accused to say that any ordinary person
    would have misinterpreted the facts which confronted the accused. However, the
    requirement for normalcy in the objective test applies, not only to the
    reaction by an ordinary person to such events, but also to how the ordinary person
    would have interpreted those events:
Hansford
, at p. 79.

[56]

To determine whether this ground of appeal has been made out, we must
    also keep in mind the principles that govern appellate review of trial judges
    responses to in-deliberation questions from the jury.

[57]

Questions from a jury during deliberations indicate some difficulty with
    the subject-matter of the question and the need for judicial assistance through
    further instruction about it. Jurors are entitled to clear, correct and
    comprehensive responses to their questions:
R. v. W. (D.)
, [1991] 1
    S.C.R. 742, at pp. 759-760;
R. v. S. (W.D.)
, [1994] 3 S.C.R. 521, at
    pp. 528-531. In addition, nothing said or left unsaid in response to a jurys
    question should discourage jurors from asking further questions:
R. v.
    Layton
, 2009 SCC 36, [2009] 2 S.C.R. 540, at paras. 29-31.

The Principles Applied

[58]

As I will explain, I would not accede to this claim of error in either
    respect advanced.

[59]

At the outset, it is helpful to recall the circumstances in which the
    underlying wrongful act is alleged to have occurred.

[60]

The appellant claimed the deceased, a knife in her hand, lunged at
    him. In other words, the loss of control was in response to an actual assault
    by the deceased. On this point, he did not equivocate. This is not the stuff of
    mistake or misperception, as in
Manchuk
or
Hansford
.

[61]

Second, not only was the trial judges response to the jurys question
    not the subject of an objection by very experienced trial counsel for the
    appellant, but also it was the very answer suggested and approved by counsel.

[62]

Third, the trial judges reply is supported by authority and consistent
    with the policy considerations that underlie the statutory partial defence of
    provocation.

[63]

As we have already seen, a mistaken belief that the person killed was an
    author of the wrongful act that provoked the loss of self-control does not
    disentitle an accused from reliance on provocation. That principle is
    established by
Manchuk
. See also,
R. v. Droste
(No. 2)
    (1981), 63 C.C.C. (2d) 418 (Ont. C.A.), at p. 424, affirmed on other grounds
    [1984] 1 S.C.R. 204.

[64]

Further, an accused who mistakenly considers conduct to be of such a
    nature as would amount to a wrongful act  for example, the unwanted sexual
    advance in
Hansford
 is similarly entitled to rely on provocation,
    provided that an ordinary person in similar circumstances would have
    misinterpreted the facts in a similar way. That principle emerges from
Hansford
.

[65]

The response of the trial judge to the jurys question and the principle
    elucidated in
Hansford
also sit comfortably with the nature of the
    provocation defence and, in particular, its objective element or component.

[66]

We recognize mistaken perceptions about the conduct of others and
    underlying circumstances in connection with other defences, justifications and
    excuses. To be fair, some are statutory, like self-defence and defence of
    property. Others may combine common law and statutory principles, like mistaken
    belief in consent. There would seem no reason in principle to deny a place for
    the same mistakes in connection with provocation.

[67]

In addition, the evaluative test  the objective standard that lies at
    the threshold  is concerned with excluding from the reach of the defence
    unusual deficiencies in self-control, those that fall below the level expected
    of our fellow citizens. The requirement that an accuseds mistake be reasonable
    is consistent with the objective standard, not incompatible with it.

[68]

In any event, even if the response to the jurys question were
    considered to be an error, the appellant suffered no prejudice as a result
    because a claim of mistake lacks an air of reality. According to the appellant,
    his mother lunged at him with a knife. It was kill or be killed. In
    addition, even if the appellants belief need only have been honestly held, the
    presence or absence of reasonable grounds for it was a factor for the jury to
    consider in deciding whether it was honestly held.

[69]

As for the failure to review relevant parts of the evidence in response
    to the jurys question, I would reject this complaint for essentially three
    reasons.

[70]

First, the judge was asked a specific question by the jury. She answered
    that question. Clearly. Correctly. And comprehensively. The jury did not ask
    for a review of the salient features of the evidence in connection with their
    question. The judges obligation was to answer the question as it was asked,
    not to answer a question that was not asked.

[71]

Second, the answer provided was what trial counsel for the appellant
    sought. What happened here was not simply a failure to object. The reply was
    exactly what experienced trial counsel requested.

[72]

Third, nothing the trial judge said or left unsaid discouraged the jury
    from asking further questions or seeking a refresher about the evidence that
    could assist their determination of the question they asked. Indeed, the trial
    judge expressly advised the jury of their right to ask further questions. They
    did not do so.

[73]

This ground of appeal fails.

Ground #2: The Instructions on Provocation and Provoking Conduct

[74]

The second ground of appeal alleges three discrete but related errors in
    the trial judges instructions on the defence of provocation and the impact of
    evidence of provocative conduct on proof of the mental element in murder. The
    relevant evidentiary background has already been canvassed and need not be
    repeated.

The Arguments on Appeal

[75]

The appellant complains first of non-direction. He says that the trial
    judge should have told the jury that, even if they rejected the statutory
    partial defence of provocation, the entire body of evidence about the
    deceaseds threats and assault, and the appellants response, was relevant to
    and required consideration in determining whether the Crown had proven a mental
    state necessary for the unlawful killing to constitute murder. The failure of
    the trial judge to give this instruction, the appellant continues, was
    non-direction amounting to misdirection.

[76]

Second, the appellant says that the trial judge erred in instructing the
    jury that they could consider the disparity in age, strength and size between
    the appellant and deceased in determining whether provocation reduced murder to
    manslaughter. In this case, the basis of the provocation defence was rage, not
    fear. The disparity in age, strength and size was not an inherent
    characteristic of the appellant, thus not relevant to contextualize the
    ordinary person or objective standard of provocation. Nor did it have anything
    to do with the subjective standard as it might, for example, in self-defence.

[77]

Third, the appellant continues, the trial judge erroneously told the
    jury that a wrongful act could not be the predictable result of something the
    accused urged, instigated or encouraged the deceased to do. The requirement
    that the wrongful act or insult be sudden does not render the prior history
    between the appellant and deceased irrelevant or foreclose the availability of
    the provocation defence. The prior relationship is a factor for the jury to
    consider, but it does not disentitle reliance on provocation as a defence.

[78]

The respondent acknowledges the distinction between the statutory
    partial defence of provocation, which reduces murder to manslaughter, and
    evidence of provoking words and conduct by a deceased, as well of an accuseds
    reaction to it, which is relevant to proof of the mental or fault element in
    murder.

[79]

In this case, the respondent says, the trial judge distinguished between
    the statutory defence and evidence of provoking words and conduct outside the
    confines of s. 232(2). The trial judge repeatedly told the jurors to consider
all
the evidence in determining whether the Crown had proven the mental or fault
    element required to prove the unlawful killing was murder beyond a reasonable
    doubt. She referred specifically to evidence about the appellants rage; his
    instinctive reaction to the brandished knife; the sudden excitement; the
    absence of thought; and his description that he snapped. Experienced trial
    counsel uttered not a word of objection to the recital of relevant
    considerations.

[80]

As for the disparity in age, size and strength between the appellant and
    the deceased and its relevance to the defence of provocation, the respondent
    points out that trial counsel for the appellant adduced this evidence at trial.
    He then asked the appellant (in light of this disparity) why he stabbed his
    mother. The appellant responded that it was a case of kill or be killed. The
    evidence was tied to the narrative about the wrongful act, but was also
    relevant to impeach the credibility of the appellant by suggesting the
    implausibility of his claim that his mother would attack him as he testified.
    The respondent adds that the judges only reference to this evidence was in a
    lengthy summary of the evidence about proof of the fault or mental element in
    murder. This was
not
a legal instruction and attracted no objection
    from defence counsel.

[81]

The respondent rejects any suggestion of misdirection on the suddenness
    requirement in light of the prior relationship between the appellant and his
    mother. Provocation was left here on the basis of the sudden lunge by the
    deceased. On this basis, the prior relationship was of no moment, likewise any
    instruction about its relevance.

The Governing Principles

[82]

Three areas of principle control the determination of this ground of
    appeal.

[83]

First, the relevance of provoking words and conduct to proof of the
    fault or mental element in murder.

[84]

To determine whether the Crown has proven beyond a reasonable doubt a
    fault or mental element required to establish that an unlawful killing was
    murder, a jury is entitled to consider  and be instructed to consider  the
    cumulative effect of
all
the evidence relevant to the issue. Things
    done or not done. Things said or not said. Before. At the time. And later:
R.
    v. Flores
, 2011 ONCA 155, 269 C.C.C. (3d) 194, at paras. 73-75;
R. v.
    Cudjoe
, 2009 ONCA 543, 68 C.R. (6th) 86, at para. 109.

[85]

Among the items of relevant evidence a jury is entitled to consider in
    proof of the fault or mental element is evidence of contemporaneous provoking
    words and conduct. The phrase provoking words and conduct in this context
    exceeds what is encompassed by s. 232(2):
Flores
, at para. 72;
Cudjoe
,
    at para. 107;
R. v. Bouchard,
2013 ONCA 791, 305 C.C.C. (3d) 240, at
    para. 62, affirmed 2014 SCC 64, [2014] 3 S.C.R. 283, at para. 2.

[86]

A rolled-up instruction reminds jurors that they must consider the
    cumulative effect of

all the evidence relevant to an accuseds state
    of mind in deciding whether the Crown has proven beyond a reasonable doubt that
    the accused had a state of mind required to make an unlawful killing murder.
    Where there is evidence of allegedly provocative words and conduct by the
    deceased and of the accuseds reaction to them, the rolled-up instruction
    should include a reference to them:
Flores
, at para. 84;
Cudjoe
,
    at paras. 108-109.

[87]

Second, the relevance of the disparity in age, size and strength to the
    defence of provocation.

[88]

The purpose of the objective component or ordinary person standard in
    provocation is to impose a minimum standard of self-control on all members of
    society and reflect the fundamental values that animate and order Canadian
    society:
R. v. Hill
, 2015 ONCA 616, 330 C.C.C. (3d) 1, at para. 78 (
Hill
15);
Cairney
, at para. 37;
Tran
, at paras. 30-34.

[89]

Although, as we saw earlier, we contextualize the ordinary person so as
    not to unduly restrict the availability of the statutory partial defence, size
    and athletic ability are not characteristics of any inherent relevance to the
    degree of self-control expected of an ordinary person. It follows that neither
    characteristic is relevant to the ordinary person test in s. 232(2):
Hill

15, at paras. 84-88.

[90]

A final point on this issue. Unlike some justifications and excuses,
    such as self-defence and duress, provocation does not measure an accuseds
    responsive conduct against some standard of reasonableness or proportionality:
Hill

15, at para. 88. Were that so, disparity in age, size and strength may
    have some relevance, but not otherwise.

[91]

Third, the requirement of suddenness and the impact of cumulative or
    self-induced provocation.

[92]

It is uncontroversial that suddenness must characterize not only the
    wrongful act or insult, but also the responsive conduct of the accused. To be
    more specific, the wrongful act or insult must strike upon a mind unprepared
    for it, make an unexpected impact that takes the understanding by surprise and
    set the passions aflame:
R. v. Tripodi
, [1955] S.C.R. 438, at p. 443;
Thibert
,
    at para. 20.

[93]

The suddenness requirement does not foreclose consideration of the
    history and background of the relationship between the principals as relevant
    to the objective standard or ordinary person test. All contextual factors that
    would give the act or insult special significance to an ordinary person must be
    taken into account:
Thibert
, at para. 18;
Cairney
, at para.
    39.

[94]

The fact that provocation is self-induced may be relevant, not only to
    the objective, but also to the subjective component of the statutory defence in
    s. 232(2). But self-induced provocation is not some special category or
    sub-species of the genus provocation subject to special principles. It is
    neither more nor less than a particular application of the principles that
    govern the defence:
Cairney
, at para. 56.

The Principles Applied

[95]

I would not give effect to this ground of appeal in any of its aspects.
    As I will explain, I am satisfied that, read as whole, the trial judges final
    instructions do not reveal reversible error.

[96]

First, the relevance of provoking words and conduct of the deceased,
    beyond the scope of s. 232(2) of the
Criminal Code
, to proof of the
    fault or mental element in murder.

[97]

In her final instructions, the trial judge separated out the essential
    elements of second degree murder. She then organized them as a series of steps
    which she converted to questions for the jury to consider and answer:

i.

Did Mr. Boukhalfa cause Antonia Zammits death?

ii.

Did Mr. Boukhalfa cause Antonia Zammits death unlawfully?

iii.

Did Mr. Boukhalfa have the state of mind required for murder?

The first two questions and the essential elements
    reflected in them were uncontroversial.

[98]

In her instructions following the third question, after explaining the
    fault or mental element required to make an unlawful killing murder, the trial
    judge continued:

To determine Mr. Boukhalfas state of mind, what he meant to
    do, you should consider all of the evidence. You should look at Mr. Boukhalfas
    words and conduct before, at the time, and after the unlawful act that caused
    Ms. Zammits death. All of these things, and the circumstances in which they
    happened, may shed light on Mr. Boukhalfas state of mind at the time; they may
    help you to decide what he meant or didnt mean to do. In considering all the
    evidence, use your good common sense.

[99]

The trial judge then reviewed at some length various aspects of the
    evidence adduced at trial that could assist the jury in deciding whether the
    appellants unlawful killing of the deceased was murder. She concluded this portion
    of her instructions in this way:

You should consider the evidence that Mr. Boukhalfa was
    confused, and dazed, and in a rage not just by itself, but all together, and
    along with any other evidence that might suggest that Mr. Boukhalfa acted
    instinctively, in the sudden excitement of the moment, without thinking about
    the consequences of what he did, and without either state of mind necessary to
    make the unlawful killing of Antonia Zammit murder.

This evidence does not necessarily mean, however, that Mr.
    Boukhalfa did not have either mental state necessary to make the unlawful
    killing of Ms. Zammit murder. The fact that Mr. Boukhalfa may have been angry
    is not necessarily inconsistent with either state of mind required to make the
    unlawful killing murder.

Feeling angry at someone, or about something, may cause a
    person to have one of the states of mind necessary for murder. As a result, and
    apart altogether from what I will tell you later about provocation, Mr.
    Boukhalfas anger, on its own, is not enough to reduce murder to manslaughter. On
    the other hand, when considered along with the evidence of a confused or dazed
    condition, evidence of anger may raise a reasonable doubt whether, when he
    unlawfully killed Ms. Zammit, Mr. Boukhalfa had either state of mind required
    for murder. It is for you to say. Use your good common sense.

[100]

In this passage, the trial judge made it clear that evidence of the
    provoking words and conduct of the deceased, as well their sequelae  the
    instinctive, excited, unthinking response of the appellant  was relevant evidence
    for the jurors to consider in their assessment of the adequacy of the Crowns
    proof of the fault or mental element in murder. Not only the language used by
    the trial judge, but also the separation of this issue from the statutory
    defence, the discussion of which did not occur until later in the charge, would
    have left no room for doubt about the use of this evidence to determine whether
    the appellant had committed murder.

[101]

Second, the relevance of disparity in age, size and strength to the
    availability of the provocation defence.

[102]

In her instructions on the essential components of the statutory defence
    of provocation, the trial judge made no reference to the relevance of disparity
    in age, size and strength between the appellant and the deceased. Her only
    reference to this subject was in her review of the evidence that was relevant
    to proof of the fault or mental element in murder.

[103]

In addition, when the trial judge contextualized the ordinary person
    or objective standard in provocation, the only additional factors she mentioned
    were:

i.

age;

ii.

sex; and

iii.

prior relationship history with the deceased.

The absence of any reference to the disparity in size
    and strength from these contextualizing factors would not have been lost on the
    jury.

[104]

Third, the requirement of suddenness.

[105]

The trial judge included references to the background and history of the
    relationship between the principals, not only in contextualizing the ordinary
    person or objective standard, but also in connection with the subjective
    component of provocation. In these circumstances, and in the absence of any
    objection from defence counsel, the absence of any further reference did not
    cause the appellant any prejudice.

Ground #3: The Post-Arrest Interview

[106]

This ground of appeal focuses on the manner in which the trial judge
    edited a videotaped interview of the appellant by two officers from the
    Homicide Squad and what she told the jury about the way in which they could use
    this evidence in deciding the case.

[107]

In oral argument, the appellant expanded the scope of his complaint to
    include submissions that were not made in his factum or advanced by experienced
    trial counsel.

[108]

Some brief background will provide the essential context for
    consideration of this ground of appeal.

The Background

[109]

The police interview upon which this ground of appeal focuses began
    about 15 hours after the appellants arrest on a charge of murder. The
    interview, which was audio and video recorded, lasted about three hours.

[110]

The appellants arrest for murder occurred about four hours after his
    apprehension and arrest for breach of his conditional sentence order. On
    arrest, he was cautioned and advised of his
Charter
rights. He invoked
    his right to counsel, then spoke with duty counsel and a criminal lawyer.
    Officers from the Homicide Squad approached him briefly about 13 hours after
    his arrest, but did not interview him until 2 hours later.

The Position of Counsel at Trial

[111]

At trial, the appellant challenged the admissibility of the interview on
    the ground of voluntariness.

[112]

Trial counsel argued that the cumulative effect of several factors
    overbore the appellants will and raised a reasonable doubt about the
    voluntariness of the interview. Inadequate information about the classification
    of murder with which he was charged and the name of the deceased. The failure
    to provide medical attention for the appellants injuries. The use of a
    stratagem. The offer of an inducement. Denigration of the role of defence
    counsel.

[113]

The trial Crown resisted the claim of involuntariness. The appellants
    responses were voluntary. No threats were made, or inducements offered. Nothing
    said, done or omitted created an atmosphere of oppression. The appellant had an
    operating mind. No comments about the role of defence counsel tainted the
    voluntariness of the interview.

[114]

At trial, the appellant advanced no claim of
Charter
infringement. He did
not
contend that this interview had been
    obtained in a manner that infringed any enumerated
Charter
right or
    freedom, or argue that the interview should be excluded under s. 24(2) of the
Charter
.
    As a result, the appellant adduced no evidence on the issues of constitutional
    infringement, or the nexus between any infringement and the police interview
    and made no submissions about exclusion under s. 24(2) or any remedy under s.
    24(1). The trial judge made no findings of fact and reached no conclusions on
    any of these issues.

The Ruling of the Trial Judge

[115]

The trial judge provided written reasons for her decision on the
    voluntariness of the police interview. She explained why she found the
    interview was voluntary up to the point at which Detective Louhikari referred
    to putting a spin on the appellants story. This, the trial judge reasoned,
    amounted to an inducement and rendered the balance of the statement
    inadmissible.

[116]

The trial judge rejected trial counsels argument that the entire
    portion of the interview conducted by Det. Louhikari should be excluded because
    its prejudicial effect exceeded its probative value. She did edit parts of the
    interview that refer to the appellants involvement in other offences.

The Arguments on Appeal

[117]

In his factum, the appellant reiterated the argument advanced at trial which
    sought the exclusion of the entire portion of the interview conducted by Det.
    Louhikari, even if it were voluntary, because its prejudicial effect exceeded
    its probative value.

[118]

The appellant says that the probative value of the Louhikari portion of
    the interview was minimal, yet the prejudice was significant. The prejudicial
    effect arose from a combination of sources. The number and length of pauses and
    silence in response to police questions. The characterization by Det. Louhikari
    that the appellants answers were lies, ridiculous, game-playing and would
    cause women in the future to be afraid of him. And then the reference to
    killing some random dude, leaving the impression that the appellant was a
    dangerous man.

[119]

In oral argument, the appellant advanced a further basis upon which to
    justify exclusion of the Louhikari portion of the interview, including those
    parts preceding the finding of involuntariness. A finding of voluntariness, the
    appellant says, of necessity entails a finding that the appellants right to
    silence has been infringed. This infringement requires exclusion of the full
    interview despite the fact that it occurred after what had previously been
    found voluntary. In an alternative submission, the appellant invoked the
    principles put in place by
R. v. Pino
, 2016 ONCA 389.

[120]

The respondent says that neither argument advanced by the appellant
    warrants our intervention.

[121]

To begin, the respondent contends, decisions about editing a police
    interview, its nature and extent, involve the exercise of judicial discretion.
    The trial judge applied the proper principles, did not misapprehend the
    evidence and reached a reasonable conclusion. Her decision is entitled to
    deference. Nothing warrants our intervention.

[122]

The probative value/prejudicial effect analysis, the respondent
    continues, is not so one-sided as the appellant characterizes it. In addition
    to the substance of what the appellant said, the video demonstrates the
    appellants use of his right hand, thus contradicting his claim that he is
    left-handed, and also furnishes evidence that is relevant to an assessment of
    his credibility as a witness and the reliability of his testimony.

[123]

The respondent points out that an objective assessment of the
    prejudicial effect of the earlier portion of the police interview reveals
    little prejudice. None emerges from the hesitations and failures to respond
    since each was the subject of mid-trial and final instructions that enjoined
    jury use in assessing the adequacy of the evidence to establish guilt. And the
    interview revealed no evidence of bad character or disposition apt to lead to
    propensity reasoning as a route to guilt.

[124]

In connection with the further ground raised in oral argument, the
    respondent says that the appellant should not be permitted to raise this issue
    for the first time on appeal. The trial record lacks the necessary evidentiary
    foundation, as well as critical findings of fact. What is more, the argument
    now advanced is seriously flawed. A finding of voluntariness extinguishes any
    complaint about a breach of the right to silence. And a reasonable doubt about
    voluntariness cannot establish a breach of the right to silence on a balance of
    probabilities, an essential gateway to s. 24(2). The second impediment to the
    operation of s. 24(2) is that what occurred here does not fall within the nexus
    required by the phrase obtained in a manner in s. 24(2).

The Governing Principles

[125]

Several principles have a say in our determination of this ground of
    appeal.

[126]

First, raising issues for the first time on appeal.

[127]

In the normal course of events, evidentiary records are created in trial
    courts, then reviewed for error and interpreted in appellate courts. Failure to
    raise an issue at trial deprives the trial court of the evidentiary wherewithal
    to make findings of fact, draw inferences and reach conclusions on legal
    issues. Further, the deficiency in the trial record impedes meaningful
    appellate review.

[128]

Immature or incomplete trial records, an inevitable consequence of
    failing to raise an issue or advance an argument at trial, yield a principle
    that appellate courts generally will not entertain an issue for the first time
    on appeal:
Pino
, at para. 45;
R. v. Ralph
, 2014 ONCA 3, at
    para. 21;
R. v. Richards
, 2015 ONCA 348, at para. 49.

[129]

Second, the relationship between issues of voluntariness and the right
    to silence in statements made to persons in authority by those accused of
    crime.

[130]

The common law right to silence does not include the right of a person
    under arrest not to be spoken to by police:
R. v. Singh
, 2007 SCC 48,
    [2007] 3 S.C.R. 405, at para. 28. The voluntariness requirement includes the
    common law principle of the right to silence:
Singh
, at para. 31. And
    so it is that any inquiry into the voluntariness of a statement made by an
    accused to a person in authority focuses on the conduct of the police and the
    effect of that conduct on the accuseds right to choose or exercise free will
    in deciding whether to speak or say nothing:
Singh
, at para. 36.

[131]

A finding that the Crown has proven the voluntariness of an accuseds
    statement to a person in authority beyond a reasonable doubt has implications
    for related claims about compromise of the right to silence within s. 7 of the
Charter
.
    If the Crown proves voluntariness beyond a reasonable doubt, there can be no
    finding of a
Charter
violation of the right to silence in connection
    with the same statement or interview. Conversely, where an accused can show, on
    a balance of probabilities, that his or her right to silence has been breached,
    the Crown cannot succeed in demonstrating the voluntariness of the same statement
    beyond a reasonable doubt:
Singh
, at paras. 37, 39.

[132]

On the other hand, it would seem logically to follow that a reasonable
    doubt about voluntariness may not necessarily or will not on its own support a
    finding, on a balance of probabilities, that the right to silence protected by
    s. 7 of the
Charter
has been infringed.

[133]

Third, the meaning of obtained in a manner within s. 24(2) of the
Charter
.

[134]

In assigning meaning to the phrase obtained in a manner in s. 24(2),
    our approach is to be generous, consistent with the purpose of the subsection,
    and take into consideration the entire chain of events surrounding the
    infringement and discovery of the evidence. The obtained in a manner
    requirement may be met where the evidence and the breach are part of the same
    transaction or course of conduct. The connection between the breach and the
    evidence may be causal, temporal, contextual or any combination of these three
    relationships, so long as they are neither too tenuous or too remote:
Pino
,
    at para. 72.

[135]

Sometimes,
Charter
breaches that occur
after
discovery
    of evidence tendered for admission may result in exclusion of the evidence
    under s. 24(2):
Pino
, at para. 48. But the mere fact that the
Charter
breach occurred
after
discovery of the evidence does not, without
    more, provide a gateway to s. 24(2). The evidence and
Charter
breach
    must be part of the same transaction or course of conduct, the connection
    causal, temporal, contextual or some combination not too tenuous or remote.

[136]

Finally, the effect of exercising the right to silence.

[137]

Where a statement or interview, which includes express assertions of the
    right to silence or failures to respond to questions that may yield an
    inference of its invocation, is admitted in evidence, a trial judge should
    provide a limiting instruction to jurors. The purpose of this prophylactic is
    to ensure that an accused does not pay an evidentiary price for the exercise of
    a constitutional right:
Hill

15, at para. 46.

The Principles Applied

[138]

As I will explain, I would reject this ground of appeal, not only as
    originally advanced, but also as expanded in oral argument.

[139]

First, the original complaint.

[140]

The original argument simply recycles the submissions made at trial. In
    combination, the number and length of pauses and silence; the characterization
    of the appellants responses and the likely impact of his conduct on future
    relationships; and the random dude reference tips the probative
    value/prejudicial effect balance in favour of exclusion.

[141]

The trial judge considered and rejected these submissions. Her analysis
    and conclusion reflect no error in principle. Nor any misapprehension of
    evidence. Her conclusion is not unreasonable. Nothing said in argument
    dislodges the substantial deference that is the trial judges due. No
    intervention can be justified.

[142]

Further, as the recorded interview was about to be played for the jury,
    the trial judge instructed the jury at some length about the use they could
    later make of this evidence. They could believe some, none or all of it. They
    could assign such weight to it as they saw fit. The evidence was what they saw
    and heard the appellant say, not what the officers said. The appellant was
    under no obligation to speak to the police or to answer any of their questions.
    That he sometimes hesitated or said nothing was
not
evidence that
    jurors could consider in reaching their decision about guilt. The same was true
    of the appellants exercise of his right to counsel. The random dude
    reference originated with the appellant. Its repetition by investigators
    created no prejudice.

[143]

I would also not give effect to the additional complaints advanced in
    oral argument. My reasons are twofold. The first, procedural. The second,
    substantive.

[144]

This argument is advanced for the first time in this court. At trial,
    the challenge to the admissibility of the police interview was solely on the
    basis of voluntariness. The appellant argued that, in combination, several
    factors raised a reasonable doubt about voluntariness. Alternatively, if the
    interview were found voluntary, exclusion should follow because its probative
    value was overborne by its prejudicial effect.

[145]

The trial record is barren of any claim of
Charter
infringement; of any asserted nexus between a
Charter
infringement and
    the discovery or obtaining of the interview as evidence; and of any suggestion
    that admission of the evidence would bring the administration of justice into
    disrepute. Correspondingly, no evidence was adduced on any of these issues and
    no findings made. I see no reason to depart from the general rule that we should
    not serve as a court of first instance on this issue.

[146]

The argument now advanced travels a route that begins by treating a
    reasonable doubt about the Crowns proof of voluntariness following the finding
    of an impermissible inducement as equivalent to a finding, on a balance of
    probabilities, of a breach of the right to silence under s. 7 of the
Charter
.
    This serves as a gateway to s. 24(2) and should result in exclusion of the
    interview under that provision.

[147]

It is correct to say that a finding beyond a reasonable doubt that an
    interview was voluntary eliminates any claim that the right to silence under s.
    7 has been infringed. And it is equally correct to say that a finding, on a
    balance of probabilities, that the right to silence has been infringed means
    that the Crown will not be able to prove the voluntariness of the interview
    beyond a reasonable doubt. But it by no means follows from a reasonable doubt
    about voluntariness that an accused has established, on a balance of
    probabilities, an infringement of the right to silence under s. 7 of the
Charter
.

[148]

To access the exclusionary rule of s. 24(2), an accused must establish,
    on a balance of probabilities, not only an infringement of a
Charter
protected right or freedom, but also a nexus between that infringement and the
    discovery of evidence tendered for admission. This nexus is expressed in the
    phrase obtained in a manner in s. 24(2).

[149]

The appellants claim founders on both grounds. He has failed to
    establish, on a balance of probabilities, an infringement of the right to
    silence in s. 7. A reasonable doubt about voluntariness is not the functional
    equivalent of a likely breach of the right to silence. The inability of one
    party (the Crown) to prove voluntariness beyond a reasonable doubt is not the equivalent
    of the other party (the appellant) establishing the likelihood of a breach of
    the right to silence.

[150]

Nor does the conscription of
Pino
, a decision not available to
    the trial judge, assist the appellant.

[151]

Recall that in
Pino
the first
Charter
infringement, a
    breach of s. 8, occurred because of the manner in which the appellant was
    arrested. A search incident to that arrest resulted in seizure of drugs in the
    trunk of the motor vehicle occupied by Pino. Two breaches of the right to
    counsel under s. 10(b) followed seizure of the drugs. The first involved
    misinformation about the right, the second a failure to facilitate the right
    once invoked.

[152]

In deciding whether to admit the drugs as evidence in
Pino
, the
    trial judge limited his analysis to the circumstances of the s. 8 breach since
    it could not be said that the drugs were obtained in a manner that infringed
    s. 10(b) because the infringements took place after the drugs had been found in
    a search incident to arrest. This court disagreed, concluding that all the
    infringements were part of the same transaction beginning with Pinos arrest
    which involved a breach of s. 8.

[153]

In
Pino
,
it could fairly be said that the
    after-the-discovery infringement was part of the same transaction, course of
    conduct or series of events as the earlier infringement. That is simply not
    this case.

[154]

I would not give effect to this ground of appeal.

Ground #4: The Neighbours Evidence

[155]

The final ground of appeal against conviction focuses upon an
    admissibility ruling made by the trial judge about the evidence of a neighbour
    who lived across the hall from the apartment occupied by the deceased and the
    appellant.

[156]

The substance of the evidence of the neighbour  Stephanie Johnston
    has been summarized in paras. 16-18 of these reasons. Some features of it
    warrant brief reminder before I turn to the basis upon which it was admitted at
    trial and the correctness of that decision.

The Background

[157]

Stephanie Johnston recalled hearing a young male voice yelling in the
    Zammit/Boukhalfa apartment on different occasions over a period of ten years.
    She could not identify the speaker, but it is a reasonable inference that the
    speaker was the appellant, the only male occupant of the apartment. These
    outbursts were not constant, rather intermittent, and decreased in frequency as
    the years passed. Ms. Johnston did not hear a female voice, but acknowledged
    the possibility that a female could have spoken and she (Ms. Johnston) simply
    did not hear it.

[158]

Ms. Johnston did not hear any raised voices or argument on the evening
    before the deceased died.

The Positions at Trial

[159]

Trial counsel for the appellant objected to the admissibility of
    Stephanie Johnstons evidence.  He contended that the evidence, which involved
    discreditable conduct, lacked context, was temporally remote from the killing
    of the deceased and enhanced the likelihood of jury speculation and propensity
    reasoning. The amorphous nature of the evidence, coupled with its remoteness
    and the absence of any nexus to material events, rendered it of negligible
    probative value and tipped the balance against admissibility.

[160]

The trial Crown argued that it was open to the jury to infer that, as
    the only male occupant of the apartment, the appellant was the person whose
    voice Ms. Johnston heard. With that threshold finding, the jury could conclude
    that the outbursts were reflective of the nature of the relationship between
    mother and son, demonstrative of an animus on the appellants part towards the
    deceased and indicative of his state of mind when he killed his mother. In sum,
    the evidence had significant probative value.

[161]

The trial Crown described the prejudicial effect of the evidence as
    negligible. It was scarcely evidence of disreputable character apt to foot a
    chain of propensity reasoning. An assessment of prejudicial effect must also
    take into account the context in which the evidence was introduced. In this
    case, there was no controversy that the appellant unlawfully killed the
    deceased, thus reducing almost to a vanishing point the prospect of
    propensity-based reasoning.

The Ruling of the Trial Judge

[162]

The trial judge admitted the evidence because she was satisfied that:

i.

it was relevant to establish an animus and the intent of the appellant
    to kill his mother; and

ii.

its probative value exceeded its prejudicial effect.

The Arguments on Appeal

[163]

The appellant says that the trial judge made two errors in admitting
    this evidence. The first, in finding that the evidence was relevant to
    establish animus, motive or intent. And the second, assuming the evidence was
    relevant, in failing to exclude it on the ground that its prejudicial effect
    exceeded its probative value.

[164]

The appellant contends that because Ms. Johnston could or did not hear
    the entirety of the outbursts, thus could not assist in fixing the context in
    which they occurred, the words cannot be said to be probative of any fact in
    issue. It follows, the appellant says, that the evidence should have been
    excluded as irrelevant.

[165]

Even if the trial judge was not wrong to find the evidence was relevant,
    her balancing of probative value and prejudicial effect was flawed. She failed
    properly to recognize that this was evidence of disreputable conduct or
    character, which could generate forbidden propensity reasoning. This prospect
    was exacerbated when, contrary to the trial judges ruling, Crown counsel
    introduced evidence about the deceaseds gentle demeanour.

[166]

The respondent takes issue with both claims of error advanced by the
    appellant.

[167]

According to the respondent, Stephanie Johnstons evidence was relevant
    to establish the nature of the relationship between the parties, and in
    particular, to demonstrate animus, even motive, on the part of the appellant.
    Each in turn was relevant to establish the fact and legal character of the
    unlawful killing of the deceased.

[168]

The respondent points out that the trial judges balancing of probative
    value and prejudicial effect is entitled to significant deference in this
    court. Her assessment of each component, and her balancing of them, reflects no
    error in principle, misapprehension of the evidence or an unreasonable
    conclusion. The prejudicial effect of the evidence is negligible in the face of
    the appellants own admissions to the police, and in his trial testimony, that
    he and his mother had had some fights and stuff. There was no issue at trial
    that the appellant killed his mother and did so unlawfully, and little
    controversy about the unlawful killing amounting to murder. No harm. No foul.

[169]

The respondent does acknowledge that the evidence Crown counsel adduced
    about the disposition of the deceased ought not to have admitted. After all,
    the trial judge had ruled it inadmissible. But in the end, the respondent says,
    the appellant suffered no prejudice by its introduction.

The Governing Principles

[170]

Like many controversies about misreception of evidence in a criminal
    trial, some basic principles illuminate the path our analysis should follow.

[171]

First, relevance.

[172]

Relevance is not an inherent characteristic of any item of evidence
    proposed for admission in a criminal trial. Relevance exists as a relationship
    between the item of evidence tendered for reception and the proposition of fact
    it is offered to prove. Evidence is relevant if it is probative of the fact it
    is offered to prove according to everyday experience and common sense. An item
    of evidence is relevant if it renders the fact it seeks to establish slightly
    more (or less) probable than that fact would be without the evidence, through
    the application of everyday experience and common sense:
R. v. Luciano
,
    2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 204.

[173]

We assess the relevance of items of evidence in the context of the
    entire case and the positions of counsel. Relevance does not exist in the
    abstract or in the air:
Luciano
, at para. 205;
R. v. Cloutier
,
    [1979] 2 S.C.R. 709, at pp. 730-732.

[174]

In prosecutions for unlawful homicide, evidence is often adduced to
    establish the nature of the relationship between the accused and the deceased.
    Sometimes, evidence is proffered to establish animus or motive on the part of
    an accused to kill the deceased. Animus or motive is relevant to establish, not
    only an accuseds participation in the unlawful killing of the deceased, but
    also the state of mind with which the unlawful killing was done.

[175]

Animus or motive may be established in a variety of ways. By evidence of
    things done, of words spoken, or of some combination of both. But what is
    offered in evidence must be relevant to establish the animus or motive alleged.

[176]

In
R. v. Barbour
, [1938] S.C.R. 465, the Supreme Court of
    Canada cautioned that it is not every item of evidence about a quarrel between
    an accused and a deceased that can establish feelings of hostility or malignity,
    thus animus or motive, to commit a crime. Transient ebullitions of annoyance
    and anger on the part of an accused, which pass away and lead to nothing, are
    not sufficient. We ought not slip into the habit of admitting evidence which,
    reasonably viewed, cannot tend to prove animus or motive or to explain the acts
    charged merely because it discloses some incident in the history of the
    relations of the parties:
Barbour
, at p. 469.

[177]

Second, admissibility.

[178]

Without more, the relevance of an item of evidence will not ensure its
    reception in a criminal trial. To be received, evidence that is both relevant
    and material, must not run afoul of any applicable admissibility rule. One such
    rule, at once an overarching principle of the law of evidence and a rule of
    admissibility for certain species of evidence, is that the probative value of
    the evidence must exceed its prejudicial effect. As an overarching principle,
    we sometimes see some overlap with the threshold requirement of relevance.

[179]

Two decisions well illustrate the overlap between relevance and the
    admissibility rule which balances probative value and prejudicial effect. Apart
    from the use that was sought to be made of the evidence in proof of guilt, the
    circumstances revealed in these two authorities are similar to those in this
    case.

[180]

In
R. v. Ferris
(1994), 27 C.R. (4th) 141 (Alta. C.A.), the appellant
    was arrested for murder, advised of his
Charter
rights and lodged in a
    police cell. He asked to make a phone call to his father. An officer heard the
    appellant say Ive been arrested and later, I killed David. The officer
    heard conversation before, after and between the two sets of words he repeated,
    but could not hear, thus could not say what was said. The trial judge admitted
    the officers evidence. The appellant was convicted and argued on appeal that
    the officers evidence should not have been admitted.

[181]

On appeal, a majority of the Alberta Court of Appeal concluded that the
    evidence should not have been admitted. The majority considered the evidence
    irrelevant:

The trial judge must be satisfied there is some evidence upon which
    a jury could conclude the meaning of the uttered words. On the evidence
    introduced at the voir dire it would be impossible for a properly instructed
    jury, acting reasonably, to come to a conclusion as to what these words meant
    on any standard of proof. A trier of fact could not ascertain the accuseds
    meaning when he uttered the words. Certainly, it would be impossible to
    conclude they constituted an admission made by the accused. Therefore the words
    are not logically probative of a fact in issue, are not relevant, are
    inadmissible and should not have been left with the jury.

See
,
Ferris
, at para. 30.

[182]

The majority in
Ferris
went on to hold the evidence would also fall
    foul of the hearsay rule and could not survive application of the general
    discretion to exclude evidence the prejudicial effect of which exceeded its
    probative value:
Ferris
, at paras. 32 and 36.

[183]

In
R. v. Ferris
(1994), 34 C.R. (4th) 26, the Supreme Court of
    Canada dismissed a further appeal, holding that the meaning of the words was so
    speculative and its probative value so tenuous that the evidence should have
    been excluded on the ground that its prejudicial effect overbore its probative
    value:
Ferris
, at para. 1.

[184]

In
R. v. Hunter

(2001), 155 C.C.C. (3d) 225 (Ont. C.A.),
    the Crown adduced evidence from a passerby who claimed to have heard the
    appellant say to his lawyer in a courthouse corridor I had a gun, but I didnt
    point it. The witness could provide no context for the utterance and
    acknowledged that there could have been more conversation before and after what
    he had heard.

[185]

This court allowed Hunters appeal explaining:

In my view, without the surrounding words, it would be
    impossible for a properly instructed jury to conclude that the overheard
    utterance was an admission or perhaps even what it meant. Clearly its meaning
    remains highly speculative. The trier of fact would have to guess at the words
    that came before and after to fix on a meaning. Since its meaning is highly
    speculative, its probative value is correspondingly tenuous. However, the
    substantial prejudicial effect is obvious. This balance clearly favours
    exclusion of the overheard utterance and, as in
Ferris
, that should have
    been the result.

See,
Hunter
, at para. 21.

[186]

Third, appellate review of decisions balancing probative value and
    prejudicial effect.

[187]

A trial judges assessment of the balance between probative value and
    prejudicial effect is entitled to substantial deference on appeal in the
    absence of legal error, material misapprehension of the evidence or a
    conclusion that is plainly unreasonable:
R. v. B. (C.R.)
,
[1990]
    1 S.C.R. 717, at pp. 733-734;
R. v. Roks
, 2011 ONCA 526, 274 C.C.C.
    (3d) 1, at para. 93;
R. v. Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581, at
    para. 31.

The Principles Applied

[188]

As I will explain, although I have concluded that the trial judge erred
    in admitting the evidence of Stephanie Johnston, I am satisfied that, in the
    circumstances of this case, its admission did not result in any substantial
    wrong or miscarriage of justice.

[189]

Turning first to the relevance and admissibility of this evidence.

[190]

The Crown proffered the evidence of Stephanie Johnston about the raised
    male voice she had heard coming from the Zammit/Boukhalfa apartment
    intermittently over a decade to establish animus and motive on the part of the
    appellant. No one can gainsay that evidence of an accuseds animus towards a
    deceased, or motive to kill the deceased, is relevant and material in
    prosecutions for unlawful homicide. Provided the evidence is compliant with any
    applicable admissibility rules, it may be received to establish an accuseds
    participation in an unlawful killing or the state of mind with which the
    killing was carried out. This is so despite the fact that sometimes motive and
    animus are demonstrated by evidence of extrinsic misconduct.

[191]

To establish animus or motive, a party such as the Crown, may rely on
    evidence from a variety of sources. But, whatever the source, the evidence
    tendered to establish animus or motive must be such to render the existence of
    the animus or motive slightly more probable than it would be without the
    evidence, according to everyday experience and common sense. In other words,
    the evidence tendered to establish animus or motive must be
relevant
to their proof.

[192]

In this respect, we need recall the teachings of
Barbour
that
    the words or conduct relied upon, reasonably viewed, must be capable of
    establishing animus or motive, not merely be transient ebullitions of the
    annoyance and anger of an accused that come to naught. Further, we ought not
    slip into the habit of admitting evidence which, reasonably viewed, cannot tend
    to prove animus or motive or explain the acts charged, just because it
    discloses some conduct in the history of the relationship of the parties. We
    should also heed the lessons of
Ferris
and
Hunter
that
    context is critical to meaning and meaning to probative value.

[193]

In this case, as the jury heard the evidence, Ms. Johnston could not
    recall the words she heard spoken or having told police that she heard leave
    me alone. Thus, the jury was left with mere infrequent ebullitions uttered
    over a decade. Decreasing as time passed. None contemporaneous with relevant
    events. We know nothing of the context, thus cannot assign any meaning to
    determine their relevance to establish animus or motive. At the very least,
    even if they met the modest threshold for relevance, they should have been
    excluded because their prejudicial efficient, a product of their highly
    speculative meaning, outweighed their probative value.

[194]

On the other hand, I am satisfied that introduction of this evidence
    caused no substantial wrong or miscarriage of justice. The appellant
    acknowledged his participation in the unlawful killing of his mother. He did
    not seriously contend that it was other than murder. He sought a verdict of
    manslaughter based on provocation, a statutory partial defence that only
    becomes engaged on proof of murder. This evidence did not occupy a place of
    prominence in the addresses of counsel or the trial judges charge.

[195]

In the result, I would reject this ground of appeal and dismiss the
    appeal from conviction.

THE APPEAL FROM SENTENCE

[196]

The appellant appeals the period of parole ineligibility of fifteen
    years fixed by the trial judge.

[197]

It is helpful to begin with a brief reference to some additional
    background relevant to a determination of the period of parole ineligibility,
    followed by a summary of the positions advanced by trial counsel and a snapshot
    of the trial judges reasons for judgment.

The Background Facts

[198]

In determining the period of parole ineligibility, the trial judge was
    required to take into account four factors:

i.

the nature of the offence;

ii.

the circumstances surrounding the commission of the offence;

iii.

the character of the accused; and

iv.

the parole eligibility recommendations of the jury.

Prior paragraphs of these reasons have adequately
    described the nature of the offence and the circumstances surrounding its
    commission. Nothing will be gained by their repetition. However, something
    should be recorded about the appellants character and the jurys
    recommendations about parole eligibility.

The Character of the Appellant

[199]

The appellant was 26 years old when he killed his mother and 30 years
    old when the trial judge sentenced him. He was not a first offender. As a
    youth, he had been found guilty of several drug offences. His record included
    convictions for carrying a concealed weapon and assault causing bodily harm
    arising out of a vicious attack on a woman he met for the first time after
    making her acquaintance online.

[200]

When the appellant killed his mother, he was bound by a conditional
    sentence order and a weapons prohibition. The killing was his second breach of
    a conditional sentence order.

[201]

The Catholic Childrens Aid Society had intervened in the appellants
    care over several years beginning in early childhood. The intervention included
    psychiatric assessment and prescription of anti-psychotic medication, but no firm
    diagnosis of a defined mental illness. During the assessment, the appellant was
    described as intelligent, but also egocentric, manipulative, aggressive and
    belligerent.

The Jury Recommendation

[202]

After instructions on their task, five jurors made no recommendation
    about parole ineligibility. Three said 10 years. Two said 15. One juror
    recommended 20 years and another, 25.

The Positions of the Parties

[203]

The trial Crown invited the trial judge to delay parole
    eligibility for 15 years. Defence counsel submitted that no enlargement of the
    period of parole ineligibility beyond the statutory minimum of 10 years was
    warranted.

The Reasons of the Trial Judge

[204]

The trial judge delayed the appellants eligibility for parole
    consideration until he had served 15 years of his life sentence. She considered
    that the offence reflected a profound breach of trust. It involved the use of
    multiple weapons and the infliction of gratuitous and excessive violence. The
    trial judge took into account that the appellant had twice breached a
    conditional sentence order, and killed his mother when he was bound not only by
    one of the conditional sentence orders, but also by a weapons prohibition.
    These circumstances led the trial judge to conclude that the objective of
    rehabilitation had to take a backseat to deterrence and denunciation.

[205]

The trial judge considered that the only mitigating factors were the
    appellants age and the support he received from his extended family. She
    accepted the submission that the appropriate range of parole ineligibility for
    cases such as this was between 12 and 17 years and settled on 15 years as fit
    for the appellant and for his offence.

The Arguments on Appeal

[206]

The appellant contends that the trial judge erred in holding that the
    verdict of the jury meant that they had rejected provocation. The appellant
    says that the jury could have accepted the appellants version of events, but
    simply not have had a reasonable doubt that it reduced murder to manslaughter
    as an intent-inhibiting factor or as a statutory partial defence. The appellant
    also argues that the trial judge erred in finding that the murder was
    unexplained. After all, the appellant testified that he snapped when
    confronted with the knife in his mothers hand.

[207]

The appellant says that the period of parole ineligibility fixed by the
    trial judge is harsh and excessive because it fails to take into account not
    only the appellants mental health problems, but also the fact that he had
    never been violent with his mother on any previous occasion.

[208]

The respondent characterizes the period of parole ineligibility set by
    the trial judge as entirely fit. The appellant, with a record including
    offences of threatened and actual violence and bound by the terms of a
    conditional sentence order, engaged in a prolonged attack on his mother. He
    used knives and a baseball bat, striking multiple blows against an older,
    physically inferior victim. The jury rejected what he claimed as provocation in
    both its aspects. The record is barren of any confirmed mental illness to
    account, in whole or in part, for what happened. No meaningful mitigating
    factors are present.

The Governing Principles

[209]

As a general rule, the period of parole ineligibility imposed on
    conviction of second degree murders is ten years. However, this period can be
    ousted if the trial judge decides that, according to the statutory criteria,
    the accused should wait a longer period before his or her suitability for
    release into the public is assessed:
R. v. Shropshire
, [1995] 4 S.C.R.
    227, at para. 27.

[210]

Appellate courts may not intervene lightly when a sentence, including a
    period of enhanced parole ineligibility, is challenged on appeal. Trial judges
    have a broad discretion to impose a sentence, including a period of parole
    ineligibility, within the limits imposed by law. Variations on appellate review
    should be confined to cases where the appellate court is satisfied that the
    sentence is not fit, that is to say, clearly unreasonable:
Shropshire
,
    at para. 46;
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    para. 39.

[211]

To justify appellate intervention, an appellant must demonstrate that
    the sentencing judge:

i.

erred in principle;

ii.

failed to consider a relevant factor; or

iii.

erred in considering an aggravating or mitigating factor

and that error had an impact on the sentence imposed:
Lacasse
,
    at para. 44.

The Principles Applied

[212]

As I will briefly explain, I would not interfere with the period of
    parole ineligibility fixed by the trial judge. I am simply not persuaded that she
    erred in principle, failed to consider a relevant factor, or made a mistake in
    her consideration and evaluation of the influence of aggravating and mitigating
    factors.

[213]

To begin, since the determination of guilt was expressed in the verdict
    of a jury, s. 724(2) of the
Criminal Code required
the trial judge to
    accept as proven all facts, express or implied, essential to that verdict. The
    subsection also
permitted
the trial judge to find any other relevant
    fact disclosed by evidence at the trial. The appellant advanced the statutory
    partial defence of provocation on which the trial judge instructed the jury.
    The trial judge also left evidence of provoking words and conduct as an item of
    evidence relevant for the jury to consider in deciding whether the Crown had proven
    the mental or fault element necessary to make the unlawful killing murder.

[214]

The jury found the appellant guilty of second degree murder. Of
    necessity, this verdict entailed two findings of fact by the jury. The jury was
    satisfied beyond a reasonable doubt that the appellant had a state of mind
    described in s. 229(a) of the
Criminal Code
when he unlawfully killed
    the deceased, a state of mind not diminished by any provoking words or conduct
    on the part of the deceased. Further, the jury was satisfied beyond a
    reasonable doubt that the appellant was not acting under the statutory partial
    defence of provocation. It follows that the trial judges findings of fact in
    this respect are solidly rooted in the evidence adduced at trial and the jurys
    verdict.

[215]

Second, fixing a period of parole ineligibility upon conviction of
    second degree murder is part of the sentencing of a convicted offender. It
    follows that the various sentencing objectives, such as deterrence and
    denunciation; principles, such as proportionality; and aggravating and
    mitigating factors, such as breach of trust and commission of the offence while
    subject to a conditional sentence order were proper considerations in
    determining the period of parole ineligibility.

[216]

Third, short of being unreasonable or contaminated by improper
    considerations, the period of parole ineligibility fixed by the trial judge is
    entitled to significant deference in this court.

[217]

For these reasons, I would dismiss the appeal from sentence.

CONCLUSION

[218]

I would dismiss the appeals from conviction and sentence.

Released: KF August 21, 2017

David Watt J.A.

I agree. K. Feldman J.A.

I agree. Grant Huscroft J.A.

[1]

In his factum, the appellant also challenged the trial judges
    instructions on evidence of post-offence conduct. He did not pursue that ground
    in oral argument and I shall say nothing more about it.