COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rawn,
    2015 ONCA 396

DATE: 20150604

DOCKET: C59940

Watt, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Rawn

Appellant

Joseph Di Luca, for the appellant

Amy Alyea, for the respondent

Heard: April 28, 2015

On appeal from the convictions entered on October 3, 2013
    and the sentences imposed on October 31, 2014 by Justice Jane Ferguson of the Superior
    Court of Justice, sitting without a jury.

Watt J.A.:

[1]

Daniel Rawn claimed it was Steve who caused the accident. Ran into a
    pick-up truck parked on the boulevard in front of a house. Right after the
    accident, Steve disappeared. Vanished into the mists of a mid-October night
    in Collingwood. Never to be seen or heard from again.

[2]

Rawn was in the car. A passenger, so he said. But a passenger whom a
    witness saw get out of the drivers door of the car immediately after the
    accident. No choice, Rawn said. The passenger door was too badly damaged to
    open.

[3]

Rawn did not say anything to the police about Steve. So the police
    charged Rawn with possession of stolen property (the car) and several driving
    offences. Some alcohol related, others not.

[4]

Rawn had a trial. He told the judge that Steve, not he, was the
    driver. The judge did not believe Rawns story about Steve. But in explaining
    the reasons for her disbelief, the judge made some mistakes. About the
    character of the defence and an adverse inference permitted by statute. What is
    left to decide is whether the evidence against Rawn was so overwhelming that no
    substantial wrong or miscarriage of justice occurred despite the errors in the
    trial judges analysis of Rawns testimony.

[5]

As I will explain, I am satisfied that the case against Rawn was so
    overwhelming that a reasonable and properly instructed trier of fact would
    inevitably have convicted him of the offences with which he was charged. I
    would dismiss the appeal.

THE BACKGROUND FACTS

[6]

The case for the Crown at trial was that Rawn was the driver of the
    vehicle. He knew it was stolen. He was impaired and disqualified from driving
    at the time of the accident.

[7]

The case for the defence relied on Rawns testimony that, although
    impaired and disqualified from driving, he was not the driver when the accident
    occurred. Steve was the driver. The appellant was a front seat passenger.

[8]

The relevant facts are brief.

The Theft

[9]

The car involved in the collision was stolen from a residential driveway
    a few blocks away from the accident site a few hours earlier.

The Collision and its Aftermath

[10]

Early
    in the morning of October 14, 2011, the stolen car crashed into a truck.  Within
    minutes, the appellant emerged from the drivers door of the car and began to
    walk away.

[11]

The
    truck owners next door neighbour heard the crash. He immediately rushed to his
    front door. He looked outside and saw that a car had struck his neighbours
    truck and pushed it away from its usual parking spot. He saw the appellant emerge
    from the drivers door of the car and leave the scene.

[12]

When
    the appellant broke into a run, the neighbour gave chase. He easily caught up
    to the appellant. The neighbour escorted the appellant back to the damaged
    vehicles. The neighbours wife called the police.

The Police
    Response

[13]

A
    police officer responded to the call. She asked those assembled, including the
    appellant, who was the driver of the vehicle? One or more of those at the
    scene pointed towards the appellant. Within seconds of the question being
    asked, the appellant raised his hand and said: Me, Dan Rawn. He was arrested.

The Appellants Condition

[14]

When
    arrested by the police, the appellant was intoxicated. He was also bound by a
    driving prohibition that disqualified him from operating a motor vehicle.

The Breath Test

[15]

At
    the police station, an officer made a breathalyzer demand of the appellant, who
    refused to supply a breath sample.

The
    Appellants Account

[16]

The
    appellant testified at trial. He said he was a passenger in the car, not the
    driver. He got out of the car by the drivers door because he could not open
    the passenger door due to the damage caused by the collision.

[17]

The
    appellant said the driver of the car was a man named Steve, a person he had
    seen around local bars about six times in the preceding five years. The
    appellant had seen Steve in a bar shortly before the accident. Steve wanted
    a tattoo, a request he had made of the appellant (a tattoo artist) on several
    previous occasions. The appellant had declined Steves earlier requests
    because Steve was always drunk. This time, however, Steve was not impaired.
    The appellant agreed to do the tattoo, even though he had consumed nearly a
    dozen beers.

[18]

The
    appellant got into Steves car. Steve drove them to the appellants
    mothers house to pick up the tattoo equipment. The appellant put the equipment
    in the back of Steves car. The men headed towards Steves place in Barrie.
    Their trip was interrupted by the collision. When the appellant got his
    bearings after the collision, Steve was gone and never reappeared.

The Reasons of
    the Trial Judge

[19]

The
    trial judge gave oral reasons for judgment the day following the submissions of
    counsel. She did not believe the appellants testimony. She accepted the
    evidence of the neighbour and the investigating officer. She accepted that the
    appellant had responded to the investigating officers question about who had
    been driving the car by raising his hand and speaking his name. She found that
    this was confirmatory of the appellant being the driver. She drew an adverse
    inference from the appellants running from the scene.

THE GROUNDS OF APPEAL

[20]

The
    appellant submits that the trial judge erred in law:

i.

in characterizing the appellants defence, that Steve was the driver
    of the car, as an alibi, the late disclosure of which supported an adverse
    inference against the appellant and amounted to positive evidence of guilt;

ii.

in using the statutory adverse inference in s. 258(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, as an item of evidence to prove that the
    appellant was the driver of the car; and

iii.

in making impermissible use of the appellants abysmal criminal record
    in reaching her determination of guilt.

In my view, the trial judge committed all three
    errors. However, and as I mentioned before, I would dismiss the appeal. The evidence
    was so overwhelming that there was no realistic possibility that a new trial
    would have led to a different outcome.

Ground #1: The Alibi Ground

[21]

Three
    brief excerpts from the trial judges reasons fairly represent her
    characterization of the appellants defence as an alibi and her treatment of
    it:

The ridiculous made-up alibi with late disclosure and no
    details about this Steve guy who was never mentioned to the police.

With respect to what is essentially an alibi, the Steve driver
    issue, there was never any disclosure to the police at any time. Apparently it
    was only disclosed at the judicial pre-trial held, I believe, in June of 2013.
    No last name, a generic description, no known address were provided. I agree
    that the details were meaningless. An investigation wasnt possible.

Again, Ive already found that this alibi  I dont believe the
    alibi, and although its not necessary in this case, I also draw an inference
    with respect to this alibi evidence, the late disclosure, and the lack of
    detail about this Steve individual.

[22]

The
    appellant denied that he was the driver of the car. However, he admitted that
    he was in the car when the collision occurred. In the passenger seat, not the
    drivers seat. His acknowledged presence at the scene when the offence was
    committed was not an alibi. He was there. He was not elsewhere.

[23]

The
    Latin word alibi means elsewhere. It is an assertion that when the alleged
    unlawful conduct took place, the person charged with it was elsewhere, and thus
    it was impossible for him or her to have committed the offence:
R. v.
    Gottschall
(1982), 10 C.C.C. (3d) 447 (N.S. S.C. (A.D.)), at p. 455. Alibi
    evidence must be determinative of the final issue of guilt or innocence of an
    accused:
R. v. Sgambelluri
(1978), 43 C.C.C. (2d) 496 (Ont. C.A.),
    leave to appeal to S.C.C. refused (1978), 43 C.C.C. (2d) 496, at p. 500. The
    defence advanced here did not shift the factual focus from the facts alleged by
    the Crown to an entirely different factual scenario:
R. v. Wright
,
    2009 ONCA 623, 247 C.C.C. (3d) 1, at para. 19.

[24]

Mischaracterization
    of the appellants position at trial as a defence of alibi led the trial judge
    into a second error. She drew an adverse inference against the appellant from
    his failure to disclose his alibi in a timely manner. No legal basis existed
    for her to do so. No alibi. No adverse inference from failure of early
    disclosure of the alibi.

[25]

A
    final point about the misuse of the alibi. The comment the ridiculous made-up
    alibi comes uncomfortably close to converting disbelief of an alibi to proof
    of its concoction. No shortage of precedent forecloses this line of reasoning.

Ground #2: The Adverse Inference from Refusal to Comply

[26]

The
    appellant refused to comply with a valid breathalyzer demand made of him at the
    police station after he had been taken there from the scene of the accident.

[27]

The
    trial judge referred to the provisions of s. 258(3) of the
Criminal Code
,
    which permit a court to draw an inference adverse to an accused from his or her
    failure or refusal to comply with a breathalyzer demand under s. 254. The judge
    said: Although not necessary to draw an inference as Im already satisfied
    beyond a reasonable doubt without drawing the inference, I draw this inference
    in this case.

[28]

Section
    258(3) permits, but does not require a court to draw an inference adverse to
    the accused from a failure or refusal of an accused to comply with a
    breathalyzer demand without reasonable excuse. The section applies only to
    specified alcohol-driving offences. It does not apply in prosecutions for
    driving while disqualified or prohibited or to prosecutions for possession of
    stolen property.

[29]

A
    trier of fact is entitled to draw inferences from circumstantial evidence, as
    for example from the refusal of a person accused of crime to participate in
    certain investigative procedures: John Henry Wigmore,
Evidence in Trials at
    Common Law
, Vol. II, revised by James H. Chadbourn (Toronto: Little, Brown
    and Company, 1979), at pp. 120-122. At common law, a refusal was considered to
    be evidence of consciousness of guilt:
Wigmore
, at pp. 120-121.

[30]

Section
    258(3) represents a codification of the common law principle in a defined set
    of circumstances. A breathalyzer is a device that measures blood-alcohol
    concentration by an analysis of samples of breath. A demand made under s. 254
    makes clear the purpose of the test. The results of the test establish the
    concentration, if any, of alcohol in the blood of the person who provides the
    sample. And in its turn, the blood-alcohol concentration may establish or help
    to establish an essential element of an alcohol-driving offence.

[31]

Like
    other statutory provisions that permit a court to draw an adverse inference, s.
    258(3) does not show its hand to reveal the precise adverse inference it has in
    mind. The inference, like any inference from circumstantial evidence, must be
    logical and reasonable, not illogical or speculative. On this basis, the
    adverse inference permitted by s. 258(3) must be concerned with impairment and
    an accuseds state of mind on that issue. It is not a reasonable and logical
    inference from refusal to provide a breath sample that the person who refused
    was the operator or had the care or control of a motor vehicle.

[32]

The
    only issue at trial in this case was whether Crown counsel had proven beyond a
    reasonable doubt that the appellant was the person driving the stolen vehicle
    at the time of the collision. On that issue, no reasonable and logical
    inference could arise from his refusal to comply with a breathalyzer demand.
    Refusal to provide a breath sample on demand does not make it more or less
    likely that the person who refused, in this case the appellant, had care or
    control of the stolen vehicle at the time of the collision.

[33]

The
    only issue on which the adverse inference of s. 258(3) could assist the Crown
    in its proof was not an issue at trial. Counsel acknowledged that the appellant
    was impaired. Although the trial judge did not expressly say how she used the
    adverse inference, it seems reasonable to conclude that she used it on the
    single issue that was in controversy at trial  the identity of the driver. She
    erred in doing so.

Ground #3: Misuse of the Appellants Criminal Record

[34]

In
    her reasons for judgment, the trial judge made reference to the appellants
    abysmal criminal record, which had been filed as an exhibit.

[35]

The
    appellants criminal record, whether filed as an exhibit or simply put to him
    when he testified as a witness, was admissible for a limited purpose. It was a
    factor for the trial judge to consider, one of many, in assessing the
    credibility of the appellant as a witness at trial and the weight to assign to
    his evidence.

[36]

The
    reasons of the trial judge do not disclose, either in express terms or by
    necessary implication, that she confined her use of the appellants criminal
    record, which included multiple convictions for cognate offences, to her
    assessment of the appellants credibility and the weight to be assigned to his
    evidence.

The Effect of the Errors

[37]

Not
    every error in a criminal trial warrants appellate intervention. Some do.
    Others do not. Errors of law are not always fatal. Under s. 686(1)(b)(iii) of
    the
Criminal Code
, convictions can be upheld despite errors of law
    provided the error has not resulted in a substantial wrong or miscarriage of
    justice:
R. v. Van
, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34.

[38]

The
    burden of showing an appellate court that the proviso of s. 686(1)(b)(iii)
    should be applied and the conviction sustained despite the error rests on the
    Crown:
Van
, at para. 34. Two categories of error may be saved by the
    proviso. An error may be so minor or harmless that it could not have had any
    impact on the verdict. A second category consists of serious errors, which
    would otherwise justify a new trial or acquittal, except that the evidence
    against the appellant is so overwhelming that any other verdict would have been
    impossible to obtain:
Van
, at para. 34. Where the evidence against an
    accused is so powerful and no realistic possibility exists that a new trial
    would yield a different result, the proviso should be applied to avoid the cost
    and delay of further proceedings:
Van
, at para. 36; and
R. v.
    Jolivet
, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 46.

[39]

This
    was a simple case. The only issue was whether Crown counsel had proven beyond a
    reasonable doubt that the appellant was the driver of the stolen car that
    struck the parked truck. Defence counsel acknowledged at trial that convictions
    should follow on all counts upon proof beyond a reasonable doubt that the
    appellant was the driver of the car.

[40]

The
    evidence that the appellant was the driver of the car was overwhelming. He
    emerged from the drivers side within at most a couple of minutes of the
    collision. There was no evidence of anyone else in the immediate vicinity of
    the vehicle. He attempted to flee the scene, but was stopped by a neighbour. The
    circumstances of the accident were suggestive of a driver with compromised
    abilities: the car struck a pick-up truck parked on the boulevard off the
    travelled portion of the roadway. The appellant was impaired. When a police
    officer asked who had been the driver of the car, the appellant put up his hand
    and said Me, Dan Rawn.

[41]

The
    trial judge described the requirements of
R. v. W.(D.)
, [1991] 1 S.C.R.
    742, and proceeded to consider whether she believed or had a reasonable doubt
    about the appellants denial of liability. She did not believe the appellant. His
    evidence raised no reasonable doubt about his guilt. She relied upon the
    testimony of the neighbour who saw the appellant get out of the car, the truck
    owner and the investigating police officer. It was only after these findings
    that the trial judge referred to:

i.

the alibi and its late disclosure;

ii.

the adverse inference in s. 258(3) of the
Criminal Code
; and

iii.

the appellants abysmal criminal record.

[42]

The
    trial judges reasons reveal the errors of law advanced by the appellant. That
    said, the reasons make it clear that she was satisfied beyond a reasonable
    doubt about the appellants guilt without drawing the adverse inference for
    which s. 258(3) provides. She also made it clear that she had already rejected
    the appellants alibi and that drawing an adverse inference from late
    disclosure was not necessary in this case. The statement about the
    appellants abysmal criminal record must also be read in light of her
    apparently correct use of the criminal record of a Crown witness.

[43]

On
    any objective analysis, the Steve as driver story would not give pause to
    even the most gullible assessor. The appellant, a drunken tattooist, happens
    upon Steve, sober for the first time in the appellants experience. Steve
    wants a tattoo. They decide to drive to Barrie to do the tattoo. Steve has a
    car, which he crashes into a pick-up truck parked on the boulevard in front of
    a house. Then Steve disappears so quickly that a witness with an unobstructed
    view of the accident scene within seconds sees only the appellant emerging from
    the drivers door of the vehicle.

CONCLUSION

[44]

Despite
    several errors in the trial judges reasons, I am satisfied that the
    appellants convictions should be affirmed. The evidence against him was so overwhelming
    that there is no realistic possibility that a new trial would produce a
    different result.

[45]

For
    these reasons, I would dismiss the appeal from conviction. The appeal from
    sentence is dismissed as abandoned.

Released: June 4, 2015 (D.W.)

David
    Watt J.A.

I
    agree S.E. Pepall J.A.

I
    agree M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Remey, 2015 ONCA 416

DATE: 20150610

DOCKET: C57385

Weiler, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kareem Remey

Appellant

Zachary Kerbel, for the appellant

Melissa Adams, for the respondent

Heard and released orally: June 4, 2015

On appeal from the conviction entered on April 24, 2013
    and the sentence imposed on April 24, 2013 by Justice Paul L. Bellefontaine of
    the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his conviction on two counts of possession of a
    firearm without a license; two counts of possession of cocaine for the purpose
    of trafficking; two counts of possession of a firearm while prohibited; and
    obstructing a police officer.

[2]

The charges against the appellant arose from the investigation of an
    individual who identified himself as Chris Walker to a police officer during
    a July 2010 traffic stop. The police observed that the driver had four cellular
    telephones and was attempting to hide large amount of cash in the car.
    Information from a confidential informant led police to believe this person was
    a drug dealer using an apartment on Town Center Court (the Apartment) as a
    stash house. Further investigation led police to believe Chris Walker was an
    alias used by the appellant. The police applied for a general warrant
    authorizing covert searches of the Apartment. The general warrant was executed
    on January 17 and 20, 2011. During these searches the police found cocaine
    packaged for sale, a digital scale, cooking utensils covered with crack cocaine
    residue, $1,460 cash, and the appellants passport. Six months later, the
    police obtained a search warrant for the Apartment under the
Controlled Drugs
    and Substances Act
, S.C. 1996, c. 19 as amended, which was executed in
    June 2011. Police found a rifle in an ottoman in the living room, a small
    quantity of marijuana, and an Ontario drivers license in the name of Chris
    Walker bearing the appellants photograph.

[3]

The grounds of appeal relate to the trial judges dismissal of the
    appellants s. 8
Charter
application. He challenges the validity of
    the trial judges conclusion that the searches conducted at the apartment in
    January and June 2011 complied with s. 8 of the
Charter,
and that the
    general warrant complied with

s. 487.01(3) of the
Criminal Code
.

[4]

The appellant says that once the reviewing judge had excised certain
    information from the ITO (information to obtain), there was insufficient evidence
    for a warrant to issue under s. 487.01(1). The trial judge acknowledged that
    the confidential informant who had provided certain information to the police
    about the appellants alleged activities, was not reliable, and that it was
    necessary to consider the extent to which the information he provided had been
    confirmed. One of the five factors the trial judge took into consideration in
    upholding the issuance of the warrant was as follows (referring to police
    surveillance of the appellant on December 17 2010):

it would be reasonable for the issuing justice to accept the
    officers opinion the Dec 17
th
meeting with Paul Anderson was
    corroborative of the specific information provided by the confidential human
    source that Mr. Remy would be receiving drugs and then going to Durham to
    traffic in drugs that day. Mr. Remy, with a significant record for trafficking
    in narcotics and drugs, proceeds directly from Toronto to Oshawa [which it is
    conceded is in the Durham region] where he is lost in the shopping centre
    parking lot.

[5]

The appellant submits that the trial judges acceptance of the police
    officers opinion that the appellant was engaged in drug trafficking on December
    17 was unreasonable. As a result, there was insufficient confirmation of the
    confidential informants information that a drug deal would take place that
    day. The appellant points out that there was no time of day or location given
    as to where the meeting would take place (although the police knew the location
    from their surveillance). The other participant was not identified, and the
    informants means of knowledge was not indicated.

[6]

While these are important factors that go to the assessment of the
    weight to be attached to the confidential informants information they are not
    exhaustive. There were many other factors present that satisfied the reviewing
    judge of the strength and reliability of the confidential informants
    information. An important indicator of the informants reliability was that,
    after the meeting on December 17, the course of events that followed was as the
    confidential informant said it was to be. The reviewing judge properly took
    this into account in accepting the police officers opinion. The reviewing
    judges acceptance of the police officers opinion as one of five factors in
    his ruling was not unreasonable. Considered in light of the totality of the
    circumstances, there was an evidentiary basis to support the issuance of the
    warrant. This ground of appeal is dismissed.

[7]

The second argument raised by the appellant is that the terms of the
    general search warrant were too broad and it was therefore facially invalid. The
    appellant submits that the warrant did not include reasonable terms and
    conditions respecting the search of the appellants computers and thus the
    search warrant was therefore invalid as not meeting the requirements of s.
    487.01(3). In our opinion the warrant did contain terms and conditions
    respecting its execution which the reviewing judge found to be sufficient. The
    specific example respecting computers now raised before us does not appear to
    have been raised before the trial judge, which is understandable having regard
    to the fact that no computers were searched. We will not consider it now. The appeal
    is therefore dismissed.

K. M. Weiler J.A.

M. Tulloch J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rice, 2015 ONCA 478

DATE: 20150626

DOCKET: C58988

MacPherson, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Kent Rice

Respondent

Molly Flanagan, for the appellant

Gregory Lafontaine, for the respondent

Heard: June 24, 2015

On appeal from the decision of Justice Thomas A. Heeney
    of the Superior Court of Justice, dated May 30, 2014.

ENDORSEMENT

Introduction

[1]

During a police investigation into a disturbance at an apartment
    building, a surveillance video captured the respondent police officer leaning
    over a suspect as he was lying on the stairwell floor. The video shows the
    respondent hitting the suspect in the face with an open palm and twice kicking
    him, once in the ribcage area and once in the back. The issue at trial was
    whether under s. 25 of the
Criminal Code
, the force used by the
    respondent during his arrest of the appellant was excessive.

[2]

The trial judge found that hitting the suspect in the face was not
    excessive force. However, he found that the two kicks to the suspect, evidenced
    on the video, were unnecessary and that they did amount to excessive force. He
    convicted the respondent of assault.

[3]

The summary conviction appeal judge found that the trial judge offered
    one reason only for concluding that the force used was excessive, and that is
    that he could see no threat of any aggressive action on the complainants part
    immediately preceding the kicks. The appeal judge found that the trial judge effectively
    imported a pre-condition to the use of force; that is, that there must be an
    aggressive action on the part of a person being arrested. The appeal judge
    concluded that this was an error in principle and in law. He went on to hold
    that the kicking was not excessive force and he set aside the conviction and
    entered an acquittal.

[4]

The Crown seeks leave of this court to further appeal the decision of
    the summary conviction appeal judge.

Leave to Appeal

[5]

It is our view that leave to appeal should be granted because the appeal
    is arguable and the proposed question of law  the appeal judges understanding
    of the test pursuant to s. 25 of the
Criminal Code
 has significance
    to the administration of justice beyond the four corners of the case. Moreover,
    as t
his court explained in
R. v. OMeara
,
[2012] O.J. No. 2752 (C.A.) at para. 25
:

While this is the second appeal of this
    matter, it is the Crowns first appeal.  Unlike an order for a re-trial, the
    finality of the decision of a summary conviction appeal judge in this case
    meant that a further appeal was the only mechanism to the Crown to review that
    outcome.

The Appeal

[6]

On the merits of the appeal, we disagree with the appeal judge. The
    trial judge understood the test to be applied and properly assessed all the
    circumstances surrounding the use of force, as he was required to: see,
R.
    v. Nasogaluak
, [2010] 1 S.C.R. 206 at paras. 32-34. Included in his
    assessment was whether or not the suspect was acting aggressively. The video
    evidence strongly supports, among other things, the trial judges finding that
    the suspect was not
.

[7]

The trial judge assessed all of the circumstances surrounding the use of
    force, including the respondents explanation that the two kicks were
    reasonable under s. 25 to ensure compliance with his request to stand up to be
    arrested. He also considered the very telling surveillance video. He determined
    that some of the respondents force was justified and some was not. In doing so
    he correctly considered the suspects aggression or lack of same as a relevant
    contextual factor in the analysis. He did not, as the appeal judge suggests,
    impose a pre-condition of aggressive action on the part of an arrestee to justify
    the use of police force under s. 25 of the
Criminal Code
.

[8]

The appeal judge allowed that on its own, the optics [from the video]
    are not good. However, he found that, the kicks were administered solely for
    the purpose of enforcing compliance with the officers orders to stand and
    submit to arrest. He concluded that in this circumstance the force was
    justified.  Unfortunately, his analysis fails to consider proportionality and
    how kicking the suspect twice, as shown on the video, is a justified use of
    force in these circumstances. As
Nasogaluak
makes clear at para. 42:

While, at times, the police may have to resort to force in
    order to complete an arrest or prevent an offender from escaping police
    custody,
the allowable degree of force to be used remains constrained by
    the principles of proportionality, necessity and reasonableness
. (Emphasis
    added)

[9]

Absent the error that the appeal judge wrongly attributed to the trial
    judge, and having accepted all the facts as found by the trial judge, there was
    no basis upon which to interfere with the trial judges decision.

Disposition

[10]

Leave
    to appeal is granted, the appeal is allowed, and the finding of guilt made at
    trial is restored
.

[11]

A
    sentence appeal was pending before the appeal judge. He said he would have
    allowed it and imposed a conditional discharge.

[12]

Under
    ss. 839(2) and 686(4)(b)(ii) of the
Criminal Code
, the court of appeal
    may allow an appeal, and except where the verdict is that of a court composed
    of a judge and jury, enter a verdict of guilty  and pass a sentence that is
    warranted in law. Further, under s. 686(8), where a court of appeal exercises
    any of the powers conferred by s. 686(4), the court may make any order, in
    addition, that justice requires.

[13]

The
    Crown does not oppose this court imposing sentence and acknowledges that a
    conditional discharge is an available sentence. In all the circumstances, we
    conclude that rather than remitting this matter to the appeal judge, this court
    should dispose of the pending sentence appeal and that a conditional
    discharge is the appropriate sentence.

[14]

Accordingly,
    the suspended sentence imposed by the trial judge is set aside, and a discharge
    is imposed, conditional on the respondent complying with a probation order on
    the same terms and for the duration imposed by the trial judge.

J.C. MacPherson
    J.A.

Janet Simmons
    J.A.

H.S. LaForme
    J.A.


WARNING

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

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

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

(a)     any of the following offences;

(i)   an offence under section 151, 152,
    153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    346 or 347,

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

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

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

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

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

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

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

(4)
An order made under this section does not apply in
    respect of the disclosure of information in the course of the administration of
    justice when it is not the purpose of the disclosure to make the information
    known in the community. 2005, c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Robertson, 2015 ONCA 437

DATE: 20150616

DOCKET: C56796

Doherty, Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Robertson

Appellant

Daniel J. Brodsky, for the appellant

Andreea Baiasu, for the respondent

Heard:  June 11, 2015

On appeal from the convictions entered by Justice Elizabeth
    Stewart of the Superior Court of Justice, dated June 16, 2008 and June 24, 2008.

APPEAL BOOK ENDORSEMENT

[1]

The trial judges definition of exploitation for the purposes of s.
    153(1) is consistent with the prevailing authorities:
R. v. Anderson
(2009), 241 C.C.C. (3d) 432.  The characterization of the relationship was
    largely a matter of fact finding.  We defer to those findings absent a finding
    of unreasonableness or a misapprehension of the evidence.

[2]

The trial judges findings of the nature of the relationship are fully
    justified.  The appellant was 11 years older than the victim, he was her drug
    supplier and protector on the street.  There was a clear power imbalance
    created between the victim and the appellant.  The appellant took advantage of
    that vulnerability.  In doing so, he breached s. 153(1).

[3]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Rogers, 2015 ONCA 399

DATE: 20150608

DOCKET: C51859

Strathy C.J.O., Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Corey Rogers

Appellant

Delmar Doucette, for the appellant

Michael Bernstein, for the respondent

Heard: December 1, 2 and 3, 2014

On appeal from the conviction entered on April 3, 2009 by
    Justice James Ramsay of the Superior Court of Justice, sitting with a jury.

Strathy C.J.O.:

[1]

A night at the Dizzy Weasel pub in Hamilton ended with two men dead from
    knife wounds, two others in hospital and the appellant charged with first
    degree murder, second degree murder, attempted murder and aggravated assault.

[2]

The appellant admitted stabbing the two deceased men, but claimed he
    acted in self-defence. He also conceded one of the other two surviving victims might
    have been stabbed while he was defending himself.

[3]

A jury convicted him of all counts.

[4]

He appeals, asserting: the conviction for first degree murder was
    unreasonable; the jury was not properly instructed on the principles in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742, after-the-fact conduct and self-defence; a
    Crown witness was biased; and he should have received the benefit of
    legislative changes to the law of self-defence.

[5]

For the reasons that follow, I would dismiss the appeal.

A.

overview

[6]

The following overview sets the stage for my discussion of the grounds
    of appeal. Additional detail is added when I discuss each ground.

[7]

The appellant, his girlfriend Joana Desousa and his friend Tim Leeming
    arrived at the Dizzy Weasel shortly after 11:30 p.m. on February 16, 2007. The
    four victims from the events later that evening  Paul Haggerty, Kenny Clark, Lucas
    Deane and Lee-Anthony Newell  were already there.

[8]

The atmosphere between the two groups turned ugly about 20 minutes later
    when Clark used Leemings jacket to wipe up a spilled beer. The appellant confronted
    Clark and allegedly sucker-punched him in the lip. Haggerty came to Clarks
    defence and the dispute moved to the parking lot.

[9]

The appellant and Clark squared off. Leeming was present, as were
    Clarks friends Haggerty, Deane and Newell. Clark punched the appellant in the
    mouth. The appellant fled and may have been pursued briefly by Clark and some
    of his friends.

[10]

The
    appellant returned to the bar about 17 minutes later. At trial, he claimed he went
    back to collect his girlfriend and get his jacket, which he had left at the
    bar. He headed to the parking lot, where he encountered Haggerty and Clark.

[11]

There
    was a second confrontation in the parking lot involving the appellant and
    Leeming on one side and Haggerty and Clark on the other. The appellant stabbed
    Haggerty twice in the back  once in the shoulder near the neck and the other
    through the rib cage, cutting into the kidney and slicing the colon. The
    shoulder wound severed an artery and Haggerty bled to death before paramedics
    arrived. Clark was also stabbed, but was saved by emergency surgery. The
    appellant fled.

[12]

Meanwhile,
    Deane and Newell were at a nearby restaurant, where they had gone after the
    initial parking lot altercation. They were just starting their meal when
    someone, probably the appellant, ran by shouting that their friends had been
    stabbed.

[13]

Deane
    and Newell gave chase. There was evidence that suggested Deane may have grabbed
    a knife from the restaurant. They caught up with the appellant and Leeming on Gage
    Avenue. There was another confrontation. Deane struck the appellant. The
    appellant stabbed Deane repeatedly, a total of six times, including several
    times in the back. Newell claimed the appellant cut his arm when he tried to intervene.
     The appellants face was cut at some point.

[14]

The
    appellant and Leeming ran away. The appellant claimed he threw his knife into a
    dumpster. Newell tried to carry Deane to a nearby store to call for help. Paramedics
    arrived, but were unable to save Deane. Police located a steak knife blade on
    the ground on Gage Avenue, along the route taken by Newell and Deane after the
    stabbing. Deanes DNA was on the blade.

[15]

A
    forensic pathologist called by the Crown testified that Haggertys wounds were
    consistent with being inflicted by the blade. That same witness admitted
    telling Crown counsel that she hoped the appellant would be convicted.

[16]

The
    appellant was arrested the next day. He was charged with the murders of
    Haggerty and Deane, the attempted murder of Clark, and aggravated assault of
    Newell. The Crown alleged first degree murder of Haggerty, based on planning
    and deliberation between leaving the bar after the first fight and returning
    and engaging in the second fight.

[17]

The
    defence argued the blade found on Gage Avenue belonged to one of the victims,
    supporting the self-defence theory. The trial judge left self-defence (on all
    counts), the identity of the assailant (on the Clark and Newell counts), intent
    (on all counts) and provocation (on the murder counts) open to the jury. The jury
    deliberated for three days, ultimately convicting the appellant of all
    charges.

B.

issues

[18]

The
    appellant raises the following issues:

(a)

Unreasonable verdict of first degree murder
: the conviction of
    first degree murder was unreasonable because there was no evidence of planning
    and deliberation;

(b)

After-the-fact conduct
: the trial judge erred in instructing
    the jury they could consider after-the-fact conduct evidence to determine the
    appellants degree of culpability;

(c)

Expert bias
: a Crown expert was biased and a new trial should
    be ordered to admit fresh expert evidence on whether the blade recovered by
    police was the one used by the appellant;

(d)

W.(D.)
: the trial judge erred in failing to instruct the jury
    to apply the principles from
W.(D.)
when considering self-defence,
    provocation, and planning and deliberation; and

(e)

Self-defence
: the trial judge erred in refusing to leave s.
    34(1) self-defence with the jury; and the appellant should be entitled to the
    benefit of the new self-defence provision of the
Criminal Code
, R.S.C.
    1985, c. C-46 that came into force after his trial.

C.

discussion

(a)

Unreasonable verdict
    of first degree murder

[19]

The
    appellant says his conviction for first degree murder of Haggerty was
    unreasonable. Relying on the decision of this court in
R. v. Phung
,
    2012 ONCA 720, at para. 43, he says the theory of planning and deliberation was
    speculative and unsupported by the evidence. Crown counsel invited the jury to
    find that he acquired the knife between the first and second parking lot
    incidents, but the Crown could not prove where or how he got it. This theory
    reversed the burden of proof by requiring
him
to prove he had the
    knife when he first came to the bar that evening.

[20]

To
    establish an unreasonable verdict under s. 686(1)(a)(i) of the
Code
,
    the appellant must persuade us that no properly instructed jury, acting
    judicially, could reasonably have found him guilty of first degree murder:
R.
    v. Jackson
, 2007 SCC 52, [2007] 3 S.C.R. 514, at para. 2;
R. v. R.P.
,
    2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9.

[21]

The
    Crown theory was that the appellant was angry when he left the Dizzy Weasel
    after the first fight. He was angry because he got punched in the face and lost
    the fight  a fight in which Haggerty, Newell and Deane stood around cheering for
    Clark. He was angry because of the incident with Leemings jacket. And he was
    angry because he had seen Newell exchange a passionate kiss with his girlfriend
    Desousa a week earlier.

[22]

The
    Crown contended that in the 17 minutes between leaving the parking lot and
    returning, the appellant formulated a plan to stab and kill the four men.  After
    unsuccessfully attempting to call and recruit two friends to assist him, he armed
    himself with a knife and returned to the pub where he stabbed Haggerty and
    Clark.

[23]

The
    Crown acknowledged it could not prove where he got the knife, but said it was
    reasonable to infer he got one during this period. No one saw a knife while he
    was at the bar earlier in the evening. Leeming, who was with him at his home
    before he went to the bar, did not see him get the knife.

[24]

The
    appellant testified he had the knife when he arrived at the bar at 11:30 p.m. His
    story, which was challenged in cross-examination, was not free from
    difficulties. He claimed he brought the knife for protection, but had not
    brought it to the Dizzy Weasel on his previous four or five visits. In spite of
    wanting it for protection, he said he left it sitting in his jacket on the seat
    in the bar when he went outside to fight with Clark after the beer spilling
    incident. He claimed it was a large knife, at least 12 inches long, but a knife
    that size would have been visible sticking out of his jacket pocket. He claimed
    he returned to the bar after running away the first time in order to retrieve
    his jacket, but Desousa said he was wearing his jacket when he ran away.

[25]

The
    confrontation over the spilled beer, the appellant sucker punching Clark, the first
    fight in the parking lot, the anger over the kiss, the flight from the parking
    lot and the return to the bar could all support a finding of animus. The 17
    minutes between leaving and returning and the phone calls to friends to recruit
    their assistance would support a conclusion of planning and deliberation.

[26]

There
    was therefore ample evidence to demonstrate both animus and planning and
    deliberation. There was also circumstantial evidence from which the jury could
    have found the appellant obtained the knife before he returned to the bar. The
    Crown was not required to show when or how he obtained it.

[27]

I
    would therefore reject this ground of appeal.

(b)

After-the fact conduct

[28]

The
    appellant submits the trial judges instructions on the Haggerty, Deane and
    Clark counts were flawed because he told the jury they could consider whether his
    after-the-fact conduct was consistent with the actions of a person who has
    committed
the offence charged
 (emphasis added). This was an error, he
    says, because the conduct was equally consistent with lesser levels of
    culpability.

[29]

He
    submits this general instruction invited the jury to use his conduct to determine
    his degree of culpability on those counts, when it was only relevant to whether
    he had acted in self-defence:
R. v. White
, [1998] 2 S.C.R. 72, at
    para.
32;
R. v. Fraser
(2001), 56 O.R. (3d) 161
    (C.A.), at paras.
17-18, leave to appeal to S.C.C. refused, [2002]
    S.C.C.A. No. 11. It was not probative of his degree of culpability:
R. v.
    White
, 2011 SCC 13, [2011] 1 S.C.R. 433;
R. v. McIntyre
, 2012
    ONCA 356, 291 O.A.C. 359, at paras. 41-46;
R. v. Palmer
, 2010 ONCA 804,
    at paras. 12-13, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 361.

[30]

There
    were three particular acts referred to by the trial judge in his instructions:

(a)

Leeming
    testified the appellant threatened him with death if he snitched. The
    appellant denied this.

(b)

The
    appellant admitted he phoned Desousa, and told her not to name names.

(c)

The appellant
    admitted having thrown his knife into a dumpster after stabbing Haggerty and
    Deane.

[31]

The
    trial judge told the jury that if they found these events happened, they could
    use them as pieces of circumstantial evidence if they considered them more
    consistent with the acts of a person who has committed the offence charged.

[32]

He
    added, however, that before they used any of this evidence, they must consider
    whether there is any explanation for the act that is also consistent with
    innocence.

[33]

Immediately
    after that, he instructed them, as a matter of law, that this evidence only
    went to whether the appellant acted with justification  i.e. in self-defence.
    He then said, [y]ou cannot use it in deciding the question of intent, provocation,
    and whether he stabbed a particular person or in what manner. He pointed out
    that the conduct might relate to one stabbing incident and not to the other.

[34]

The
    appellant says these instructions were undermined by the trial judges subsequent
    specific instructions. For example, a few minutes later, in instructing the
    jury on the requisite state of mind on the Haggerty murder count, he gave the
    following instruction:

To determine Mr. Rogers state of mind, what he meant to do,
    you should consider all the evidence. You should consider what he did or did
    not do, how he did or did not do it and what he said or did not say. You should
    look at Corey Rogers words and conduct, before, at the time and
after the
    stabbing
. All these things, and the circumstances in which they happened
    may shed light on Corey Rogers state of mind at the time. They may help you
    decide what he meant or didnt mean to do. In considering all the evidence, use
    your common sense.  [Emphasis added.]

[35]

This,
    the appellant says, had the effect of telling the jury they
could
consider after-the-fact conduct to determine his degree of culpability.

[36]

However,
    this instruction was followed by a review of the evidence that had a bearing on
    the appellants state of mind. There was no mention of any after-the-fact
    conduct.

[37]

Similar
    instructions were given on the Deane and Clark counts. Again, these
    instructions were followed by a review of some of the evidence bearing on state
    of mind. Again, there was no reference to after-the-fact conduct.

[38]

In
    my view, reading the impugned instructions in the context of the charge as a
    whole, there was no reasonable possibility the jury would have misunderstood
    the permissible use of after-fact-conduct. The judges instruction was simple
    and clear  the jury could
only
use the evidence to determine whether
    he had acted in self-defence. The instructions on state of mind made no
    reference to the use of after-the-fact conduct to determine the appellants
    level of culpability.

[39]

In
R. v. Tuck
, 2014 ONCA 918, at paras. 44-46, this court concluded there
    was no reversible error when the trial judge instructed the jury in a similar
    fashion.

[40]

At
    its highest, this is a case like
R. v. Arroyo
, [2005] O.J. No. 1092
    (C.A.), where this court said, at paras. 16-18, that while it might have been
    preferable for the trial judge to have omitted the words after the stabbing
    from his specific instruction, its inclusion resulted in no substantial wrong
    or miscarriage of justice.

[41]

In
    assessing the risk the jury might have misunderstood the instruction, it is
    significant that the appellants trial counsel, Mr. Rosen, who listened to the
    charge as it was being given, made no objection and stated for the record he did
    not perceive any error of law in the instructions.

[42]

I
    would therefore dismiss this ground of appeal.

(c)

Expert bias

[43]

The
    appellant filed a supplementary factum asserting the Crowns forensic
    pathologist, Dr. Chitra Rao, was biased. He claims: (a) Dr. Rao displayed bias
    when she acknowledged the wounds suffered by the two deceased victims were
    consistent with having been caused by the blade found on Gage Avenue; (b) she
    exhibited bias by testifying that the blade could have broken off in Deanes shoulder
    wound and could have been carried a distance before falling out; (c) Crown
    counsels closing address made inappropriate reference to this biased evidence;
    (d) the Crown relied on impermissible oath-helping in relation to Dr. Raos
    evidence; and (e) the trial judge failed to properly charge the jury on the
    effect of Dr. Raos bias on their assessment of her evidence.

[44]

The
    appellant brought an application to admit fresh evidence in support of this
    ground of appeal  the evidence of a British forensic pathologist, Dr. Christopher
    P. Johnson, who reviewed Dr. Raos evidence at the request of Ontarios Chief
    Forensic Pathologist, in response to a request by appellants counsel.

[45]

One
    issue for the jurys consideration was whether the blade recovered by police on
    Gage Avenue came from the appellants knife (as the Crown contended) or whether
    it came from a knife carried by either Deane or Newell (as the defence claimed).
    If the jury accepted the appellants evidence that he had thrown his knife in a
    dumpster while running away after the last stabbing, the blade found on the
    street supported his claim of self-defence. If, on the other hand, the jury was
    satisfied the blade came from the appellants knife, it undermined his claim of
    self-defence and his credibility.

[46]

The
    issue of bias came up in the following context.

[47]

During
    a break in Dr. Raos examination-in-chief, she told Crown counsel she hoped the
    appellant would be convicted. Crown counsel immediately disclosed this
    statement to defence counsel. At the commencement of Dr. Raos
    cross-examination, defence counsel brought the statement to Dr. Raos
    attention. She reluctantly admitted it and apologized. She agreed with defence
    counsels suggestion that it may be something for the jury to consider when
    they consider the weight of your evidence.

[48]

Dr.
    Rao accepted many of the suggestions put to her by defence counsel in
    cross-examination, including:

·

a bruise on Haggertys chest discovered on the autopsy could have
    been caused by the victim being hit on the chest by the blunt handle of a
    substantial knife; and

·

the stab wound on Haggertys left shoulder could have been made
    by someone facing him and could have been the first knife blow administered.

[49]

These
    admissions were supportive of self-defence and lack of intent. They were emphasized
    in defence counsels closing. He submitted to the jury, based on Dr. Raos
    evidence, that the appellants response to Haggertys attack was to punch the
    guy in the chest to get him to back off and when that did not succeed, he
    stabbed him in the front right shoulder, not appreciating it might cause
    grievous bodily harm by slicing a branch of the aorta.

[50]

In
    his closing, defence counsel made a brief reference to Dr. Raos bias. The
    trial judge made no reference to it, nor was he asked to do so.

[51]

With
    this additional background, I turn to the appellants complaints in relation to
    Dr. Rao.

Use of the expression consistent with

[52]

The
    appellant submits Dr. Rao displayed bias when she agreed the stab wound
    suffered by Deane was consistent with being caused by the serrated or
    scalloped steak knife blade found on Gage Avenue. She responded to the
    Crowns questions as follows:

Q. All right. And from your examination of the wounds on Lucas
    Deane and your findings with respect to some scalloping within the wounds that
    you discovered, is this knife blade  could this knife blade have caused the
    stab wounds to Mr. Deane?

A. Could have, yes, or similar to this knife.

Q. All right. In terms of the scalloping pattern of the
    single-edged knife that we see here, is it  can you comment on whether the
    stab wounds, the very stab wounds that you gave evidence about upon Mr. Deane,
    whether this knife is
consistent with
having caused those injuries? [Emphasis
    added.]

A. Yes.

[53]

When
    asked whether the wounds to Haggerty were consistent with the use of the
    steak knife, she responded [y]es or a knife of a similar nature. Dr. Rao later
    added it was possible the same knife, or another weapon of similar
    characteristics, could have been used to cause the wounds to both Deane and
    Haggerty.

[54]

The
    appellant says the use of the phrase consistent with was improper and
    misleading, and Dr. Rao, an experienced pathologist, should not have adopted
    the phrase when the question was put to her by Crown counsel. He notes that
    recent public inquiries have emphasized the misleading nature of the expression
    consistent with. It simply means not inconsistent with, but its use is
    fraught with danger because the jury may attribute a more compelling logic to
    it: see
Report of the Kaufman Commission on Proceedings Involving Guy Paul
    Morin
(Toronto: Ontario Ministry of the Attorney General, 2008), vol. 1,
    c. 2, pp. 338-344; and
Report of the Inquiry into Pediatric Forensic
    Pathology in Ontario
(Toronto: Queens Printer for Ontario, 2008), vol. 3,
    c. 16, at pp. 433-435 [The Goudge Report]. In addition, the appellant relies on
R. v. Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330, at paras. 63-64, leave
    to appeal to S.C.C. refused, [2010] S.C.C.A. No. 125, where this court
    emphasized that a trial judge must control both the scope and the language of
    expert opinion evidence.

[55]

I
    would not give effect to this submission. The trial judge and defence counsel
    never took issue with Crown counsels use of the expression consistent with.
    In these circumstances, I am not persuaded Dr. Rao was obliged to tell Crown
    counsel the terminology was improper. In my view, her failure to do so was not
    evidence of bias, particularly when considered in context of her answers that
    the wounds
could have
been caused by that knife or
by a knife of a
    similar nature
. The trial judge reinforced the meaning of this evidence by
    instructing the jury that Dr. Rao, cannot and did not tell us whether [the
    recovered knife] caused the wounds, only that it
could have
(emphasis
    added). Taken in context, there is no reasonable possibility the jury could
    have been misled by the use of the term.

Re-examination on how the blade broke

[56]

The appellant asserts a more serious error arising from Dr.
    Raos bias regarding her acceptance of the Crowns suggestion that the blade
    could have broken off during the through and through flesh wound to Deanes
    shoulder. This supported the Crowns position that the blade belonged to the
    appellant and detracted from the appellants position that Newell also had a
    knife. It also detracted from the appellants credibility.

[57]

In re-examination, Dr. Rao was asked whether it was possible
    that the knife blade could have broken in the wound and subsequently fallen
    out. She described it as a possibility. The exact exchange was as follows:

Q. And is it possible that a superficial wound like on the
    through and through shoulder blade which we saw some, which you gave some
    evidence about movement, that the size of that wound could have  or drop a
    blade from given the superficial nature of that wound  if a knife blade broke
    in that wound as opposed to being plunged and broken off into the body cavity,
    would your opinion change with respect to that type of a superficial wound and
    whether or not the knife blade could fall out?

A. Yes, thats a possibility, yes.

[58]

The
    appellant says the premise of the question was flawed because the blade could
    not have broken off in a flesh wound. Dr. Raos failure to challenge this
    premise reflected her bias.

[59]

The
    appellant relies upon the proposed fresh evidence of Dr. Johnson, who deposed
    that it is uncommon for a knife blade to break from a handle in a stabbing and
    it would most commonly occur when the knife is of poor quality and hits bone. He
    added, however:

There are clearly a number of possibilities for how a knife
    blade could become separated from a handle during a stabbing incident such as
    this. The blade could become loosened by the action of the knife, passing one
    or more times through clothing (particularly if this was thick) and tissues,
    causing the blade to break from the handle whilst it is fully within a wound or
    else partly, or almost completely, out of a stab track. The knife could
    obviously also become separated from the handle whilst being held out of the
    body by the assailant.

[60]

He
    said that in the absence of bony injury in the wounds, it was not possible from
    any of the pathological findings to identify a wound where the blade was more
    likely to become loosened or detached. He agreed with Dr. Rao that the blade
could
have fallen out if it became detached in the shoulder wound.

[61]

In
    my view, Dr. Johnsons evidence does not establish that Dr. Raos evidence on
    this point was in any way flawed, let alone that it was tainted by bias.

Crown Closing

[62]

The
    appellant says the Crown improperly relied on Dr. Raos evidence in cross-examining
    the appellant and in closing, when the Crown submitted that the knife blade
    broke off when the appellant stabbed Deane in the shoulder. I disagree. The
    appellant admitted stabbing Deane. Deanes DNA was found on the blade. The
    blade was found near the location of Deanes stabbing. Dr. Rao provided an
    explanation of how the blade of a steak knife could have broken in the course
    of administering the final wound and how it could have fallen out of that
    wound. Dr. Johnsons evidence is not inconsistent with that possibility. I
    would therefore reject this submission.

Oath-helping

[63]

Early
    in her evidence, Dr. Rao confirmed her pathology reports had been peer
    reviewed by the Chief Coroner. Crown counsel referred to this in her closing.
    The appellant says this was impermissible oath-helping, referring to the
    general principles expressed in
R. v
.
Llorenz
(2000), 145
    C.C.C. (3d) 535 (Ont. C.A.), at paras. 27-29.

[64]

There
    was no objection made by the defence to either reference. The presence or
    absence of peer review is frequently considered in assessing the reliability of
    expert evidence: see
Abbey
and
R. v. Trochym
, 2007 SCC 6, [2007]
    1 S.C.R. 239, at paras. 39-40. In my view, taken in context, the statement was
    innocuous.

The Jury Charge

[65]

For
    these reasons, in the absence of any request by the defence at trial, in my
    view the trial judge had no obligation to comment in his charge on Dr. Raos
    bias. Given the appellants reliance on Dr. Raos evidence at trial, it may not
    have been in his interest to request an instruction on this issue.

Fresh Evidence

[66]

On
    the fresh evidence application, the appellant filed two reports of Dr. Johnson
    as well as a transcript of his cross-examination. He made no substantive
    submissions as to whether the admission of fresh evidence is in the interests
    of justice pursuant to s. 683(1) of the
Code
and whether it meets the
    test for admissibility on appeal set out in
R. v. Palmer
, [1980] 1
    S.C.R. 759, at p. 775:

(a) The evidence should generally not be admitted if, by due
    diligence, it could have been adduced at trial [although this principle will
    not be applied as strictly in criminal cases].

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

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

(d) It must be such that if believed it could reasonably, when
    taken with the other evidence adduced at trial, be expected to have affected
    the result.

[67]

In
    my view, the application flounders on the last factor, the cogency test. There
    is no reasonable likelihood that the proposed fresh evidence would meet the
    cogency test or would have affected the outcome of the trial. Dr. Johnson
    agreed with the majority of the opinions expressed by Dr. Rao. In his covering
    letter, he said, I can see no major issues at all with the pathology or the
    evidence given by Dr. Rao. There are a few points on which I would offer
    somewhat differing opinion which is not unexpected in any expert review of this
    type of material.

[68]

I
    would therefore dismiss this ground of appeal.

(d)

W.(D.)

[69]

The
    trial judge gave a standard
W.(D.)
instruction early in his charge,
    linking it to the presumption of innocence and the burden of proof.

[70]

The
    appellant says the instruction should have been tailored to the issues in this
    case. The appellant did not deny he killed Haggerty and Deane. However, whether
    he acted in self-defence on all the counts and whether there was provocation on
    the Haggerty and Deane counts were live issues. The judge failed to link the
W.(D.)
principles to the Crowns burden of disproving the conditions of those
    defences. Instead of telling the jury they were required to consider whether
    the appellants evidence raised a reasonable doubt on these defences, it was
    turned into a credibility contest.

[71]

In
R. v. Parrington
(1993), 20 C.C.C. (3d) 184 (Ont. C.A.), Cory J.A.
    noted the need to relate the principle of reasonable doubt to the evidence
    adduced  in that case, alibi evidence. He proposed the instruction later set
    out in
W.(D.)
as being applicable to any case where credibility is
    important.

[72]

The
    appellant relies on
R. v. Reid
(2003), 65 O.R. (3d) 723 (C.A.) in
    support of his submission that the instructions on self-defence and provocation
    should have incorporated a
W.(D.)
instruction. In
Reid
, where
    self-defence was advanced, the trial judge had instructed the jury that they
    may acquit the accused if they accepted the accuseds evidence, or if it
    raised a reasonable doubt. Moldaver J.A., speaking for this court, held that it
    would have been preferable to instruct the jury on the circumstances in which
    they
must
acquit, if they believed or had a reasonable doubt that the
    accused had acted in self-defence. He continued, at para. 72:

[S]uch an approach would avoid the possibility of the jury
    being misled into thinking that they retained an overriding discretion to
    convict even though they otherwise believed or had a reasonable doubt that the
    appellant was acting in lawful self-defence at the time of the killing. To
    guard against that possibility, I would suggest that in future cases, when the
    defence of self-defence is raised and the trial judge believes that a
W.(D.)
instruction is warranted, the jury should be instructed along these lines with
    respect to the first two principles:

1.  If you accept the accused's evidence and on the basis
    of it, you believe or have a reasonable doubt that he/she was acting in lawful
    self-defence as I have defined that term to you, you will find the accused not
    guilty.

2.  Even if you do not accept the accused's evidence, if,
    after considering it alone or in conjunction with the other evidence, you
    believe or have a reasonable doubt that he/she was acting in lawful
    self-defence as I have defined that term to you, you will find the accused not
    guilty.

[73]

In
    that case, however, Moldaver J.A. found the jury would
not
have been
    misled when the instructions were considered in context (at para. 73):

As indicated, the
W.(D.)
instruction given by the trial
    judge was potentially confusing. However, when it is considered in the context
    of the charge as a whole, I am satisfied that the jury would not have been
    misled into thinking that they could convict even though they otherwise
    believed or had a reasonable doubt that the appellant was acting in lawful
    self-defence at the time of the killing. Accordingly, I would not give effect
    to this ground of appeal.

[74]

The
W.(D.)
instruction is intended to ensure the jury understands the
    application of the principle of reasonable doubt to issues in which credibility
    is a factor. It makes it clear that it is not a matter of choosing between the
    evidence of the Crown on the one hand and of the accused on the other. There is
    the third alternative referred to in
W.(D.)
, namely, even if they do
    not believe the accuseds evidence, and are not left in reasonable doubt by it,
    they must consider whether, on the basis of the evidence which they do accept,
    they are convinced beyond a reasonable doubt of the accuseds guilt.

[75]

In
W.(D.)
itself, however, Cory J.A. noted, at p. 758, the failure to
    use such language is not fatal if the charge, when read as a whole, makes it
    clear that the jury could not have been under any misapprehension as to the
    correct burden and standard of proof to apply. Moldaver J.A. came to the same
    result in
Reid.

[76]

I
    agree with the respondent that the instruction in
Reid
is not
    mandatory. The failure to give it is not, on its own, reversible error. It must
    be considered in the context of the charge as a whole, including the positions
    taken by the Crown and defence. In
R. v. Bengy
, (C57571), released
    with this decision, we come to a similar conclusion.

[77]

This
    is a case, like
Reid
itself, where the trial judge brought home to the
    jury that they were bound to acquit if they believed or had a reasonable doubt
    the appellant was acting in self-defence. He told them the Crown had the burden
    of disproving self-defence and the appellant was entitled to the benefit of
    that defence if they could not say, beyond a reasonable doubt, that one of the
    conditions for self-defence did not exist. He later told them, [o]n this
    issue, the burden is on the Crown to disprove at least one of the required
    conditions beyond a reasonable doubt. If the Crown has not met its burden, you
    must acquit the accused.

[78]

He
    instructed them in the same manner with respect to provocation.

[79]

The
    failure of defence counsel to object, or to raise the issue, is telling in the
    context of a discretionary instruction. Here, experienced defence counsel made
    no such complaint.

[80]

I
    would not give effect to this ground.

(e)

Self-defence

Refusal to leave the old s. 34(1) with the jury

[81]

The
    appellant submits the trial judge erred in only instructing the jury on
    self-defence under s. 34(2) and not under s. 34(1). The latter provided:

Every one who is unlawfully assaulted without having provoked
    the assault is justified in repelling force by force if the force he uses is
    not intended to cause death or grievous bodily harm and is no more than is
    necessary to enable him to defend himself.

[82]

At
    trial, the appellant conceded instructions on ss. 35 and 37 of the
Code
were
    unnecessary
,
but argued both s. 34(1) and (2) ought to be left with
    the jury. The Crown, relying on
R. v. Pintar
(1996), 30 O.R. (3d) 483
    (C.A.), argued he should leave only s. 34(2).

[83]

After
    hearing from the Crown, the trial judge pressed defence counsel, as
Pintar
suggests
    he should, to identify a scenario in which the appellant could have a defence
    under the narrower s. 34(1) that he would not have under s. 34(2).

[84]

Defence
    counsel referred to an annotation in the
Code
(citing
Pintar
),
    which indicated on this issue:

[W]here a particular provision affords the accused a wider
    scope of justification than a companion provision, the narrow provision should
    only be put to the jury if the evidence lends an air of reality to the factual
    underpinning of that provision and the provision somehow fills a gap
    unaccounted for in the justification afforded on the wider provision.

[85]

He
    conceded that s. 34(2) was the wider provision. The discussion then turned to
    whether there was an air of reality to self-defence under s. 34(2), which
    required that the force used is not intended to cause death or grievous bodily
    harm and is no more than is necessary to enable him to defend himself. The
    following discussion ensued:

THE COURT:  But grievous bodily harm, well, thats just really
    serious bodily harm, right?

MR. ROSEN: Yeah, thats really serious bodily harm. And then,
    of course, then the fourth [requirement] is no more than necessary to defend
    himself. So you may be very well be right, that on the grievous bodily harm
    side, that if hes using a knife to stab somebody repeatedly, that

THE COURT: He must intend at least that much.

MR. ROSEN: At least that much. In which case there would be no
    air of reality. I dont want to concede that point for purposes of the record,
    but you may very well be right.

[86]

In
    the end, the trial judge charged the jury only on s. 34(1).

[87]

In
Pintar
, this court expressed a concern about over-charging a jury on
    unnecessary, inappropriate and confusing provisions and emphasized the need for
    a functional approach to the instruction on self-defence. Moldaver J.A. stated,
    at p. 494:

It [
R. v. Hebert
, [1996] 2 S.C.R. 272] invites trial
    judges to take a hard look at the evidence with a view to determining the
    essence of the claim to self-defence and the Code provision(s) realistically
    available to that claim. It advocates a careful and considered culling of the self-defence
    provisions to avoid unnecessary, inappropriate and irrelevant legal instruction
    of a kind that might well divert the jury's attention from the real basis upon
    which the claim to self-defence rests.

[88]

He
    continued, at p. 496:

To give effect to the functional approach, I would urge trial
    judges to consider the following guidelines when faced with the prospect of
    charging a jury on the law of self-defence:

(1) Consider the evidence carefully with a view to determining
    the essence of the claim to self-defence and the Code provision(s)
    realistically available to that claim.

(2)  To the extent that the evidence fails the air of
    reality test in respect of one or more of the constituent elements of a
    particular provision, that provision should not be left with the jury.

(3)  To the extent that the evidence clearly establishes
    one or more of the constituent elements of a particular provision, Crown
    counsel should be encouraged to admit the underlying facts and thereby avoid
    unnecessary legal instruction.

(4)  Where a particular provision affords the accused a
    wider scope of justification than a companion provision, the narrower provision
    should only be put to the jury if the evidence lends an air of reality to the
    factual underpinnings of that provision, and the provision somehow fills a gap
    unaccounted for in the justification afforded by the wider provision.

And, at p. 497, he made the suggestion followed by the
    trial judge in this case:

For my part, I am of the view that when trial judges are faced
    with situations like this, they should call upon counsel to justify instruction
    on the narrower provision. If the results of that exercise reveal either the
    lack of an evidentiary base for putting the narrower provision, or an inability
    to demonstrate how the narrower provision might be available to fill a gap not
    provided for by the broader one, the narrower provision should be discarded.
    Once again, let me be clear that the underlying purpose of this exercise is not
    to remove self-defence from the jury's consideration. Rather it is designed to
    focus the jury's attention on the essence of the claim to self-defence and the
    available Code provision(s) most relevant to it.

[89]

The
    appellant submits there was an air of reality to s. 34(1) because whether the
    appellant intended to cause death or grievous bodily harm was a live issue on
    all counts. On the appellants version, his first act in the parking lot
    incident was a defensive punch to Haggertys chest using the blunt handle of
    the knife. When this did not deter him, the appellant stabbed him in the shoulder
     a location he could not have realized would be fatal. With respect to the incident
    on Gage Avenue, the appellant argued he was simply flailing his knife in an
    attempt to defend himself against Deane and did not deliver any targeted stabs
    intended to cause grievous harm. As a result, he says, s. 34(1) offered a
    broader defence than s. 34(2) because it did not require a finding the
    appellant was under an apprehension of death or grievous bodily harm.

[90]

I
    would reject this ground of appeal for three reasons.

[91]

First,
    there was, as the appellants trial counsel all but conceded, no air of reality
    to self-defence under s. 34(1). Using a knife to repeatedly stab someone in the
    upper body necessarily demonstrates an intention to cause at least grievous
    bodily harm, thereby taking the case outside the ambit of s. 34(1).

[92]

Second,
    although s. 34(1) was broader than s. 34(2), in that it did not require the
    accused to be acting under an apprehension of death or grievous bodily harm, the
    jury would be bound to find the appellant apprehended grievous bodily harm if
    it found the force he used was no more than what was necessary to defend
    himself. In other words, if he was not under an apprehension of death or
    grievous bodily harm, he could not have met the proportionality requirement
    under s. 34(1) of using no more force than necessary to defend himself. Thus, s.
    34(1) could not have offered him a broader defence and charging the jury on it
    would have been unnecessary and confusing.

[93]

Third,
    given the jurys findings on first degree murder of Haggerty and second degree
    murder of Deane, they clearly concluded beyond a reasonable doubt the appellant
    intended to cause death or grievous bodily harm. By necessary implication, they
    could not have accepted his defence under s. 34(1).

[94]

I
    would therefore reject this ground of appeal.

Retrospectivity

[95]

For
    the reasons given in
R. v. Bengy
(C57571),

I conclude the
Citizens
    Arrest and Self-defence Act
, S.C. 2012, c. 9 does not apply
    retrospectively. I would therefore reject the appellants contention that, on
    appeal, he should be granted a new trial based on legislative amendments that
    came into force nearly four years after he was convicted: see
R. v. Heydari
,
    2014 ONSC 2350, at paras. 20-28.

D.

disposition

[96]

For
    these reasons, I would dismiss the appeal.

G.R. Strathy C.J.O.

I agree M. Tulloch
    J.A.

I agree W. Hourigan
    J.A.

Released: June 08, 2015