COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grant, 2016 ONCA 639

DATE: 20160823

DOCKET: C58744 and C59080

Laskin, Cronk and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Grant and Devon Vivian

Appellants

Delmar Doucette and Paul J.I. Alexander, for the
    appellant Anthony Grant

Lance Beechener and Gabriel Gross-Stein, for the
    appellant Devon Vivian

Leslie Paine and Melissa Adams, for the respondent

Heard: February 8, 2016

On appeal from the convictions entered on December 11,
    2013 and the sentences imposed on December 17, 2013 by Justice E.G. Ewaschuk of
    the Superior Court of Justice, sitting with a jury.

Laskin
    J.A.:

A.

Introduction

[1]

These appeals arise out of a drive-by shooting on a residential street
    in the north-west end of Toronto.

[2]

On a June afternoon in 2007, the appellants, Anthony Grant and Devon
    Vivian, went to Dr. Fleas Flea Market to shop. While there, Vivian was robbed
    by Jose Saez. Saez pulled a pendant from Vivians neck and then left the market
    with his friend Mustafa Omar. When Grant and Vivian followed them, Saez and
    Omar pulled out handguns, and the appellants retreated into the market.

[3]

Seconds later, Grant was robbed when Frank Akwaboah broke a chain off
    his neck. Akwaboah was with his friend Matthew Dale. This robbery precipitated
    a fight among the four men, in which Grant was punched in the face several
    times. Security personnel broke up the fight. Neither Grant nor Vivian knew any
    of the men who had robbed them.

[4]

After the two robberies, Grant and Vivian left Dr. Fleas and headed
    home in Grants Mercedes-Benz SUV. About fifteen minutes later, they were driving
    in the center lane of Kipling Avenue, going south. Vivian was driving and Grant
    was in the front passenger seat. A Honda pulled up beside them in the curb
    lane. The Honda was driven by McFrinn Paddy, and in it were the four men who
    had robbed Grant and Vivian at the market.

[5]

Saez taunted Grant and Vivian by holding Vivians stolen pendant out the
    rear driver side window. The Honda then abruptly turned right onto John Garland
    Boulevard. As it did, Omar flashed a gun out the rear passenger side window. Wanting
    his pendant back and angered by the taunts, Vivian also turned right onto John
    Garland Boulevard and followed the Honda. He accelerated the Mercedes and
    pulled up alongside the Honda. Grant pulled out a handgun from the glove
    compartment of his car and fired 13 shots at the Honda. Saez was shot six times
    and was killed. Paddy, Omar and Dale were wounded. The appellants sped away
    from the scene and three days later fled to Jamaica. Both were eventually
    arrested and returned to Toronto. At the time of the shooting, Grant was 21 years
    old and Vivian was 20.

[6]

The appellants were charged with first degree murder. They were first
    tried in 2010. Neither testified, and neither raised the defence of
    self-defence. The main issue at trial was identity. The jury found both Grant
    and Vivian guilty of first degree murder and four counts of attempted murder.
    On appeal, this court set aside their convictions and ordered a new trial on
    the ground that the trial judge erred in an exhortation he gave to the jury:
R.
    v. Vivian
, 2012 ONCA 324, 290 C.C.C. (3d) 73.

[7]

The retrial took place in late 2013 and lasted 25 days. The Crowns theory
    was that the killing of Saez was planned and deliberate, motivated by the
    appellants desire for revenge. Both Grant and Vivian testified. They
    maintained that they had been hunted by the men in the Honda. Grant claimed
    that as soon as he saw Omar flash his gun, he feared he was going to be killed.
    He fired at the Honda to save his own life and the life of his friend Vivian.

[8]

Grant and Vivian were acquitted of first degree murder but found guilty
    of second degree murder. Grant was also convicted of four counts of attempted
    murder, and Vivian was also convicted of four counts of aggravated assault. On
    their mandatory life sentences for second degree murder, the trial judge imposed
    a period of parole ineligibility of 18 years for Grant and 13 years for Vivian.
    On Grants convictions for attempted murder, the trial judge imposed a life
    sentence. On Vivians convictions for aggravated assault, the trial judge
    imposed a sentence of 14 years.

[9]

Grant and Vivian appeal both their convictions and their sentences. For
    the reasons that follow, I would dismiss the conviction appeals, but allow the
    sentence appeals and reduce all the sentences imposed by the trial judge.

B.

The issues on the conviction appeals

[10]

Grant
    and Vivian raise the following eight issues on their conviction appeals:

1

Did the trial judge err by ordering static triers to decide the
    challenges for cause?

2

Did the trial judge err by refusing to leave self-defence with the jury?

3

Did the trial judge err by refusing to leave provocation with the jury?

4

Did the trial judge err in his instructions on reasonable doubt?

5

Did the trial judge err in his
W.(D.)
instruction?

6

Did the trial judge make comments that gave rise to a reasonable
    apprehension of bias?

7

Did the trial judge adequately caution the jury on Paddys preliminary
    inquiry evidence?

8

Did the trial judge err by refusing to admit evidence about the gang affiliations
    of some of the men in the Honda?

C.

The conviction appeals

(1)

Did the trial judge err by ordering static triers to decide the
    challenges for cause?

(a)

Overview

[11]

Before
    2008, challenges for cause to the impartiality of prospective jurors in a
    criminal trial were decided only by rotating triers. The two jurors last
    sworn  or if no juror had been sworn, two persons appointed by the court
    decided whether the next prospective juror was impartial. Trial judges had a
    common law discretion or an inherent jurisdiction to control the jury
    selection process:
R. v. Moore-McFarlane
(2001)
, 56 O.R. (3d) 737 (C.A.), at para. 85;
R. v.
    Noureddine
, 2015 ONCA 770, 128 O.R. (3d) 23, at para. 38. Trial judges used
    their discretion to exclude prospective (or unsworn jurors) from the courtroom
    during the challenge proceedings to promote the impartiality of the jury
    selected to try the case.

[12]

In
    2008, Parliament amended the jury selection provisions of the
Criminal Code
, R.S.C. 1985, c. C-46,
by adding a
    second method for deciding challenges for cause on the ground of partiality (
S.C. 2008, c. 18, s. 26)
. A trial judge may exclude all
    jurors, sworn and unsworn, from the courtroom during the challenge for cause
    proceedings to preserve the jurys impartiality. Two triers, appointed by the
    trial judge, then decide all the challenges for cause. These two triers, called
    static triers, do not become part of the jury that decides the case. A trial
    judge can order the exclusion of all jurors from the courtroom and appoint
    static triers only on the application of an accused. Absent an application by an
    accused, challenges for cause on the ground of partiality are decided by the
    traditional method, by the use of rotating triers. Recently, in
Noureddine
,
    this court held that where a trial judge appoints static triers absent an
    application by an accused, the jury selected is improperly constituted and any
    convictions it renders must be quashed.

[13]

Following
    the 2008 amendment, experienced trial judges conducting jury trials in the
    Ontario Superior Court have disagreed on whether they still had discretion or
    inherent jurisdiction to exclude prospective or unsworn jurors from the
    courtroom when rotating triers were used to decide challenges for cause based
    on alleged partiality. Some trial judges have held that they continue to have
    this discretion or inherent jurisdiction. Others have held that it had been
    eliminated by the 2008 amendment. Their disagreement falls to be resolved in
    the present appeal.

[14]

During
    the jury selection proceedings, Vivian and Grant brought a race-based challenge
    for cause  a challenge to each prospective jurors presumed impartiality. They
    asked for the exclusion of the unsworn jurors from the courtroom during the
    challenge for cause proceedings. They did not initially ask for an order that
    the sworn jurors be excluded. In other words, they asked that the challenges
    for cause be determined by rotating triers and that the trial judge exercise
    his discretion to exclude the prospective or unsworn jurors from the courtroom
    during the challenge proceedings.

[15]

The
    trial judge appeared to recognize that he had this discretion, but he did not
    grant the order the appellants sought. Instead, after a dialogue with defence
    counsel, he asked whether they wanted rotating or static triers. They replied:
    if the Court does not want to exercise discretion to allow rotating triers
    and the jury out, then well take the static triers.

[16]

The
    appellants contend that the jury, which was selected after the challenges for
    cause were determined by static triers, was improperly constituted. On this
    ground alone, they say their convictions must be quashed. In support of their
    contention, they make two submissions. First, the trial judge either refused to
    recognize he had discretion to have rotating triers, yet exclude the
    prospective or unsworn jurors from the courtroom during the challenge for cause
    proceedings, or he erred by refusing to exercise that discretion. Second, as
    the defence made no application for the exclusion of unsworn and sworn jurors,
    the trial judges appointment of static triers was contrary to the 2008
Criminal
    Code
amendments and was improper.

[17]

The
    Crowns position is threefold. First, trial judges no longer have discretion to
    make the order the appellants initially sought: exclusion of unsworn jurors
    together with rotating triers. Second, if that discretion still exists, the
    trial judge did not err in refusing to exercise it because the appellants gave
    him no reason to do so. And his refusal is entitled to deference on appeal.
    Third, by agreeing to static triers, the appellants, in substance, made an
    application for the exclusion of all jurors, sworn and unsworn, during the
    challenge proceedings. Thus the Crown contends, the jury was properly
    constituted.

[18]

For
    reasons I will discuss, I have concluded as follows:

·

Trial judges still have discretion to exclude unsworn but not
    sworn jurors from the courtroom during challenges for cause on the ground of
    partiality. The 2008 amendment did not oust that discretion expressly or by
    necessary implication.

·

The trial judge recognized that he had this discretion and did
    not err in refusing to exercise it because the appellants gave him no good
    reason for doing so.

·

The appellants decision to choose to have static triers should
    be treated as an application under s. 640(2.1) to exclude both unsworn and
    sworn jurors from the courtroom during the challenge for cause proceedings.

[19]

Thus,
    in my opinion, the jury was properly constituted. I would not give effect to
    this ground of appeal.

(b)

Rotating and static triers

[20]

Sections
    640(2), (2.1) and (2.2) provide the methods for deciding challenges for cause
    (except a challenge because the name of the juror did not appear on the panel):

640(2) If the ground of a challenge is one that is
    not mentioned in subsection (1) and no order has been made under subsection
    (2.1), the two jurors who were last sworn  or, if no jurors have been sworn,
    two persons present who are appointed by the court for the purpose  shall be
    sworn to determine whether the ground of challenge is true.

(2.1) If the challenge is for cause and if the ground
    of the challenge is one that is not mentioned in subsection (1), on the
    application of the accused, the court may order the exclusion of all jurors
    sworn and unsworn  from the court room until it is determined whether the
    ground of challenge is true, if the court is of the opinion that such an order
    is necessary to preserve the impartiality of the jurors.

(2.2) If an order is made under subsection (2.1), two
    unsworn jurors, who are then exempt from the order, or two persons present who
    are appointed by the court for that purpose, shall be sworn to determine
    whether the ground of challenge is true. Those persons so appointed shall
    exercise their duties until 12 jurors  or 13 or 14 jurors, as the case may be,
    if the judge makes an order under subsection 631(2.2)  and any alternate
    jurors are sworn.

[21]

Section
    640(2) provides for rotating triers. The 2008 amendment added ss. 640(2.1)
    and (2.2). The added provisions allow for static triers. The application of
    these various provisions and the reasons for rotating and static triers are
    extensively discussed by my colleague Doherty J.A. in
Noureddine
and
    by Code J. in
R. v. Jaser
, 2014 ONSC 7528. It is unnecessary to repeat
    their discussion here. I simply note the following points from these two cases
    relevant to this ground of appeal.

·

Absent an accuseds application to exclude unsworn and sworn
    jurors, an accused has the statutory right to have challenges for cause,
    including challenges for alleged partiality, determined by rotating triers.

·

Static triers will be used only if the accused makes an
    application to exclude unsworn and sworn jurors from the courtroom during the
    challenges for cause,
and
the trial judge determines that their
    exclusion is necessary to preserve the jurys impartiality.

·

If the trial judge makes an order excluding all unsworn and sworn
    jurors, then rotating triers cannot be used because sworn jurors cannot both be
    excluded during the challenge proceedings and act as triers.

·

Rotating triers are members of the jury and if rotating triers
    are used, each juror (except the last juror chosen) has a role in selecting the
    other jurors. Static triers are appointed by the trial judge and do not become
    members of the jury.

·

Using rotating triers benefits the process of selecting the jury
    in two ways: by avoiding the risk the process could be tainted by a single
    static juror who does not properly assess the partiality of prospective jurors;
    and by promoting a sense of responsibility in individual jurors and a sense of
    cohesiveness in the jury chosen. These potential benefits are particularly
    important to the accused.

·

On the other hand, if rotating triers are used, the sworn jurors
    could be tainted by the answers to a challenge for cause given by a prospective
    juror; if static triers are used, none of the members of the jury can be
    tainted by answers given by any other prospective juror.

·

Using static triers is likely to be more efficient than using
    rotating triers as static triers need only be instructed once on their duties.

(c)

The trial judges discretion to exclude unsworn jurors

[22]

Before
    the 2008 amendment permitting static triers, trial judges unquestionably had
    discretion to exclude unsworn jurors from the courtroom during challenges for
    cause on the ground of partiality. Rotating triers would hear the challenges
    and prospective jurors would be brought into the courtroom one at a time. In
Moore-McFarlane
,
    which was decided well before the amendment, Charron J.A. affirmed the
    existence of this discretion and noted that the trial judges discretion to
    exclude unsworn jurors was entitled to deference on appeal, at para. 85:

I do not agree with the appellants' contention that there
    should be any firm rule on whether the jury panel should be excluded from the
    courtroom during the challenge-for-cause process. This matter falls within the
    trial judge's discretion in controlling the challenge-for-cause process so as
    to prevent its abuse and ensure that the process is fair to the prospective
    juror as well as to the accused person. On appeal, the trial judge's decision
    is entitled to deference and should not be interfered with unless the appellant
    can demonstrate that the trial judge committed a clear error in principle in
    the exercise of his or her discretion, or that the trial judge's decision
    resulted in a miscarriage of justice. In this case, I am not persuaded that
    there is any cause to interfere with the trial judge's decision not to exclude
    the entire panel.

[23]

It
    would appear that in some courts, excluding unsworn jurors has routinely been
    done:
R. v. Sandham
(2009)
,
    248 C.C.C. (3d) 46 (Ont. S.C.), at para. 45; or was common, and accords with
    common sense:
R. v. White
, 2009 CanLII 42049 (Ont. S.C.), at para. 9.
    Other trial judges have required persuasive reasons to make the order. So, for
    example, in
R. v. Tomlinson
, 2007 CanLII 52437 (Ont. S.C.), at para.
    12, Archibald J. refused to exercise his discretion to exclude the unsworn
    jurors in part because [t]he defence has not filed any sociological or
    psychological evidence in support of their argument that potential jurors might
    be negatively impacted by the jury selection process

[24]

I
    pause here to note that trial judges have ascribed different labels to the
    source of their authority to exclude unsworn jurors. Some have referred to the
    authority as a common law discretion
[1]
;
    others as the Superior Courts inherent jurisdiction to ensure a trial is fair.
    Nothing turns on the label for the purpose of my analysis. As Charron J.A.
    referred to the authority as a discretion  presumably existing at common law
    that is the label I will use from here on.

[25]

Following
    the 2008 amendment, experienced and highly respected trial judges disagreed on
    whether this discretion continues to exist. On one side are the reasons of
    Dambrot J. in
R. v. Riley
(2009)
,
    (247) C.C.C. (3d) 517 (Ont. S.C.) and Code J. in
Jaser
. Both concluded
    that the 2008 amendment did away with the discretion. The only exclusion order
    available to trial judges was to exclude both unsworn and sworn jurors, in
    which case challenges would be heard and decided by static triers. Recently, in
R. v. Omar
, 2016 ONSC 2660, Molloy J. said that she agreed with
    Dambrot J. and Code J.

[26]

On
    the other side of the debate are the reasons of Heeney J. in
Sandham
and
    Sproat J. in
White
. Both concluded that rotating triers could be used
    and trial judges still had discretion to exclude only unsworn jurors. Recently,
    in
R. v. Daley
, 2015 ONSC 7264, Fairburn J. held that she would use
    rotating triers and that she had inherent jurisdiction to exclude prospective
    jurors. In fact, at para. 43, she excluded all prospective jurors and sworn
    jurors, except the sworn jurors who act as rotating triers. Goodman J. made
    the same order in
R. v. Millard
, 2015 ONSC 6582.

[27]

I
    expect other trial judges, whose views have not been reduced to a reported
    case, have different opinions on the debate. I will briefly examine the
    competing arguments put forward in the trial court before offering my own
    views.

[28]

In
Riley
, the trial judge held that the accused could challenge
    prospective jurors for cause and ask a question concerning racism. The accused
    then asked that the jurors be excluded from the courtroom during the selection
    process. Dambrot J. agreed to the accuseds request but held that it could only
    be granted using static triers. In his view, jurors could only be excluded
    under s. 640(2.1) of the
Code
. His reasoning is summarized at para.
    16:

With great respect to Heeney J., and to others who hold a
    different view, I am of the view that the option of employing the rotating
    trier process is not available when the prospective jurors are excluded. While
    I acknowledge that it has been commonplace for trial judges to exercise an
    inherent power to exclude prospective jurors from the courtroom during the
    selection process in recent years, I do not believe that that option remains
    available. While judges have some leeway in the procedure they employ in the
    jury selection process where Parliament is silent on a point, they have no such
    leeway where a procedure is laid down by the
Criminal Code.

[29]

In
Jaser
, the trial judge permitted challenges for cause on prospective
    jurors impartiality. The accused asked that prospective jurors be excluded
    during the challenge for cause proceedings, or in the alternative that all
    jurors, sworn and unsworn, be excluded and static triers used. Code J. accepted
    the accuseds alternative position. He concluded that where an application is
    brought to exclude jurors to preserve the jurys impartiality, that application
    must be brought under s. 640(2.1). In his view, the common law discretion
    to exclude only unsworn jurors while using rotating triers had been overtaken
    by the new statutory regime introduced by the 2008 amendment. Trial judges
    still had discretion to exclude unsworn jurors, but only for reasons not
    related to preserving the jurys impartiality.

[30]

Conversely,
    in
Sandham
, after allowing challenges for cause related to pre-trial
    publicity, the nature of the offences, and possible prejudice toward members of
    a motorcycle club, Heeney J. agreed to the defences request to exclude only
    the prospective jurors, then bring them in one by one, and proceed with
    rotating triers. In distinguishing his order from an order under
    s. 640(2.1), Heeney J. wrote at paras. 52-53:

That is not an insignificant distinction. The new
    provisions clearly link the use of two static jurors with the exclusion of all
    sworn and unsworn jurors from the challenge process. If s. 640(2.1)
    is invoked, jurors will not participate in the challenge process as triers,
    because it will be done entirely by the two triers who are first called (triers
    who will never be sworn in as jurors). Additionally, the jurors will not
    be present for any challenge for cause except their own. Parliament
    appears to be dealing with a situation where, in order to preserve the
    impartiality of the jurors, it is necessary to completely insulate them from
    the challenge for cause process except, obviously, for their own.

That is not the case here. No-one has any difficulty with
    the jurors participating in the challenge process as triers, and no-one has any
    difficulty with the jurors remaining in the jury box after being sworn, while
    other prospective jurors are challenged.

[31]

In
White
, Sproat J. allowed a raced-based challenge for cause. The
    accused then asked for an order excluding only prospective jurors; they did not
    want static triers. The defence submitted and the judge agreed prospective
    jurors would be more likely to answer the challenge honestly if they were not being
    watched by hundreds of other members of their community.

[32]

Sproat
    J. granted the accuseds request. He held that his discretion to make an order
    excluding only prospective jurors had not been removed by the 2008 amendment.
    At paras. 32-33, he explained his reasoning, which focused on Parliaments
    intent and the purpose of the 2008 amendment:

It does not logically or reasonably follow that if Parliament
    introduces a measure to protect jury impartiality that it thereby intends to
    nullify other measures that also protect jury impartiality. Put differently, if
    the purpose of the static triers amendment was to define the circumstances in
    which prospective and sworn jurors should be excluded from the courtroom, I can
    see that it would follow that exclusion of all jurors with static triers would
    imply inclusion of all jurors with rotating triers. In my view, however,
    that is not the purpose. The purpose is to protect juror
    impartiality.

Given that we know that the thrust of the static triers
    amendment was to protect juror impartiality, it seems both ironic and plain
    wrong, that it should be interpreted to deprive the trial judge of the
    discretion, case by case taking into account the submissions of Crown and
    defence counsel, to exclude prospective jurors for the purpose of preserving
    juror impartiality.

[33]

I
    agree substantially with the reasons of Sproat J., and I agree with his
    conclusion. Like him, I view the issue as one of statutory interpretation and
    Parliaments intent. A trial judges discretion to exclude unsworn jurors while
    using rotating triers to decide challenges for cause directed at alleged
    partiality has long been recognized. That discretion is typically exercised for
    the benefit of the accused, who almost always bring challenges for potential
    partiality. And, as Sproat J. noted at para. 21, Parliament must be presumed to
    have known of that discretion when it brought in the 2008 amendment: Ruth
    Sullivan,
Sullivan on the Construction of Statutes
(Markham: LexisNexis,
    2014), at p. 205.

[34]

Sullivan
    also explains at pp. 538-539 that one of the governing principles in
    determining the legislatures intent is the presumption against changing the
    common law:

Although legislation is paramount, it is presumed that
    legislatures respect the common law. It is also presumed that legislatures do
    not intend to interfere with common law rights, to oust the jurisdiction of
    common law courts, or generally to change the policy of the common law. As
    explained in
Halsbury
, in a formulation adopted by many Canadian courts:

Except in so far as they are clearly and unambiguously
    intended to do so, statutes should not be construed so as to make any
    alteration in the common law or to change any established principle of law.

These presumptions permit the courts to insist on precise and
    explicit direction from the legislature before accepting any change. The common
    law is thus shielded from inadvertent legislative encroachment. [Citations
    omitted.]

Thus, in my view, the guiding principle to be applied
    is the following: unless the statutory amendment contains words that explicitly
    or at least by necessary implication oust the common law discretion, that
    discretion will continue to exist: see, for example,
Gendron v. Supply and
    Services Union of the Public Service Alliance of Canada, Local
50057, [1990] 1 S.C.R. 1298, at pp 1315-16;
R.
    v. Caron
, 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 34.

[35]

The
    Supreme Court recently applied this principle in at least two cases:
Caron
and
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575. In both cases the
    Court said explicit statutory language would be required to remove a courts
    inherent jurisdiction or discretion. In
Caron
, at paras. 32 and 34,
    Binnie J. wrote:

The Crown argues that even if the making of such an interim
    costs order could
in theory
fall
    within the inherent jurisdiction of the superior court, such jurisdiction has
    been taken away by statutory costs provisions. In this respect the Crown
    relies on the
Provincial Offences Procedure Act
, R.S.A. 2000, c.
    P-34, and the
Criminal Code
, R.S.C. 1985, c. C-46, ss. 809 and 840,
    which provides for example $4 a day for witnesses. The Crown argues that
    while not expressly limited, the inherent jurisdiction of the Court of Queens
    Bench is
implicitly
ousted
    by these enactments. However on this point, as well, the Jacob analysis is
    helpful:

the court may exercise its inherent jurisdiction even in respect
    of matters which are regulated by statute or by rule of court, so long as it
    can do so without
contravening
any statutory
    provision.

I agree with Jacobs on this point as well.

It would be contrary to all authority to
    draw a negative inference against the inherent jurisdiction of the superior
    court based on "implication" and conjecture about legislative intent:
Ordon Estate v. Grail
,
[1998] 3 S.C.R. 437
.
[Emphasis
    in original.]

[36]

And
    in
Summers
, in dealing with the change to the statutory regime for
    granting credit for pre-sentence custody, Karakatsanis J. wrote at paras. 55-57:

Parliament is presumed to know the legal context in which it
    legislates. The practice of using the former s. 719(3) to
    award enhanced credit for both the quantitative and qualitative consequences of
    pre-sentence detention was deeply entrenched in our sentencing
    system. This practice was expressly endorsed by this Court in
Wust
,
    where the Court identified the loss of eligibility for early release and parole
    as a reason justifying enhanced credit.

Parliament does, of course, have the power to exclude these
    circumstances from consideration (barring a constitutional
    challenge). However, it strikes me as inconceivable that Parliament
    intended to overturn a principled and long-standing sentencing practice, without
    using explicit language, by instead relying on inferences that could possibly
    be drawn from the order of certain provisions in the
Criminal Code
.

Rather, it seems more likely that Parliament intended to do
    what it did explicitly. The amendments clearly impose a
cap
on the rate at which credit
    can be awarded, at 1.5:1. This is a substantial and clear departure from pre-
TISA
practice. Having
    made its intention so clear on that point, Parliament gave no indication it
    intended to alter the reasons for which enhanced credit can be granted. [Emphasis
    in original.] [Footnotes omitted.]

[37]

In
    its 2008 amendment, Parliament explicitly gave trial judges an additional
    discretionary power to control the challenge for cause process and ensure a
    fair trial, one that is initiated by the accused. But Parliament did not by
    express words remove a trial judges discretion, which existed before the
    amendment, to order the exclusion of only unsworn jurors. Nor would the
    exercise of that discretion contravene the amendment, which provides for the
    exclusion of both unsworn and sworn jurors.

[38]

Statements
    made in Parliament during the discussions of the amendment, Bill C-23, support
    the argument that Parliament did not intend to eliminate the discretion that
    previously existed. These statements show that the amendment was not about
    fundamental law reform. Rather, it [was] about fine tuning:
House of
    Commons Debates
, 39th Parl., 1st Sess., No. 62, (16 October, 2006), at p.
    1200 (Rob Moore);
White
, at para. 18. The change to s. 640 is repeatedly
    referred to as a technical amendment. Parliament intended to add to  not
    reduce or drastically reform  the trial judges ability to ensure impartiality
    during the jury selection process. As Mr. Moore, the Parliamentary Secretary to
    the Minister of Justice and the Attorney General, explained at p. 1205:

The other proposed amendment will assist in preserving the
    impartiality of prospective jury members, as well as sworn jurors, by
providing
    the court with the power
to order the exclusion of jurors from the
    courtroom where a potential juror is being questioned in the course of a
    challenge for cause and may potentially through his or her answers
    inadvertently jeopardize the jurors impartiality. [Emphasis added.]

[39]

Even
    if the words of an amendment could remove a recognized discretion by necessary
    implication, I do not think the 2008 amendment did so. An order excluding only
    prospective jurors, while using rotating triers, and an order excluding all
    jurors, unsworn and sworn, while using static triers, are two alternative ways
    to promote and preserve the impartiality of the jury. The latter does not
    impliedly oust the former. The two ways can co-exist. They do not duplicate
    each other. The former maintains the benefits of rotating triers, which Doherty
    J.A. discussed in
Noureddine
and I referred to earlier in these
    reasons. The latter removes the possibility of any tainting of the jury, which
    Code J. referred to in
Jaser
. But in both cases, the order is rooted
    in jury impartiality. And as Sproat J. reasoned, persuasively in my opinion, if
    Parliaments purpose in bringing in the 2008 amendment was to preserve the
    jurys impartiality  as unquestionably it was  then logically Parliament
    could not have intended to eliminate another way to achieve jury impartiality.

[40]

I
    accept, as Code J. suggests in
Jaser
, that using static triers is more
    efficient and that using rotating triers may bring about the tainting of sworn
    jurors. But efficiency cannot override an accuseds right to a fair trial. And
    many accused are prepared to run the risk of some tainting as long as they can
    exclude all prospective jurors and retain the benefits of rotating triers.
    Finally, as a general proposition, I favour giving trial judges more
    discretion, rather than less, to manage the trial process fairly.

[41]

I
    thus conclude that the 2008 amendment did not deprive trial judges of the
    discretion to exclude only prospective jurors from the courtroom, while using
    rotating triers during the challenge for cause proceedings. But it is a
    discretion, not a mechanical rule to be exercised automatically. Before
    exercising a discretion to exclude only unsworn jurors to preserve
    impartiality, a trial judge is entitled to insist on a sufficient reason or
    reasons for doing so. What is sufficient will likely vary from case to case,
    and is best left to individual trial judges to decide.

(d)

Application to this case

[42]

Did
    the trial judge err by ordering the exclusion of all jurors, sworn and unsworn,
    and appointing static triers? The appellants say that he did. Either he failed
    in reality to exercise his discretion or he exercised it unreasonably. And he
    ordered exclusion and appointed static triers in the absence of a defence
    application, contrary to s. 640(2.1) of the
Code
and the reasons of
    this court in
Noureddine
.

[43]

The
    Crown says that the trial judge acknowledged he had a discretion to exclude
    only unsworn jurors but was given no reason for doing so. His refusal to make
    the order the appellants initially asked for should be deferred to in this
    court. Eventually, the Crown says, at the invitation of the trial judge, the
    appellants chose a different remedy: static triers together with the exclusion
    of all jurors, unsworn and sworn. Their choice to do so should be treated as an
    application under s. 640(2.1), for in substance that is what it was. Thus, the
    jury was properly constituted.

[44]

The
    dialogue between the trial judge and counsel in the jury selection process was
    truncated, terse at best. For me, this ground of appeal raises the most
    difficult issue of all the issues on the appeal. I agree with the Crowns
    position, but I readily acknowledge it is a close call.

(i)

The trial judge recognized that he had a discretion to exclude unsworn
    jurors but was given no reason for exercising it

[45]

Grant
    and Vivian are black males. The trial judge allowed a challenge for cause in
    which each prospective juror would be questioned whether he or she had a bias,
    prejudice or partiality against black males to the extent that it would likely
    affect your ability to render a true verdict based solely on the evidence to be
    tendered at this trial.

[46]

The
    trial judge then asked defence counsel whether they wanted the jury panel in
    or out. They both said they wanted the panel out; the Crown took no position.
    The trial judge seemed to think the defence were asking for static triers, but
    told them correctly you cant have static triers unless you make an
    application to have the jury panel excluded during the process.

[47]

Defence
    counsel replied that they did not want static triers. The Crown interrupted to
    say I thought it had to be static triers with the panel out, rotating triers
    with the panel in. Importantly, the trial judge disagreed with the Crown:
I
    dont think it has to. I thought there still is a discretion
.
 Counsel for Grant agreed. The trial
    judge followed by commenting on the different approaches of other trial judges.
    He said, I dont go quite the same way as Justice Dambrot, but almost. He
    ended his comment by stating: So I think as far as Im concerned, the general
    practice, unless
theres a very good reason
, is to have  static. [I]ts
    presumed, unless theres a very good reason, that it should be static as
    opposed to rotating (emphasis added).

[48]

Although
    the trial judge was wrong to suggest any presumption in favour of static triers
    if the panel were to be excluded, throughout his dialogue with counsel he
    nonetheless agreed he had a discretion to exclude prospective jurors while
    using rotating triers. Thus, he did not entirely agree with Dambrot J., who
    would have allowed no such discretion. But the trial judge said he would have
    to be given a very good reason to exercise this discretion.

[49]

The
    trial judge repeatedly asked for the position of the defence and for
    submissions. Yet throughout this dialogue, even after the trial judge said he
    needed a very good reason, neither defence counsel gave him one. Neither
    defence counsel made any submissions on the trial judges discretion to exclude
    only prospective jurors, or on why the trial judge should have exercised this
    discretion. The trial judge did take a narrower view of his discretion than I
    think he ought to have. But the defence had the onus to persuade him that the
    panel should be excluded. He cannot be faulted for failing to exercise
    discretion to exclude only prospective jurors while using rotating triers, when
    defence counsel did not put forward any reason for doing so. The trial judges
    refusal to order the exclusion of prospective jurors is entitled to appellate
    deference, and I would not interfere with it.

(ii)

The appellants choice of static triers should be treated as an
    application to exclude both unsworn and sworn jurors

[50]

Having
    been given no reason for using rotating triers but excluding unsworn jurors,
    the trial judge gave counsel a choice: rotating triers with the panel in, or
    static triers with the panel out. After briefly consulting with each other,
    defence counsel reversed their earlier position and chose static triers. They
    evidently wanted the jury panel out. Counsel for Grant summed up the defences
    position: [I]f we are stuck with the legislation and the Court does not want
    to exercise discretion to allow rotating triers and the jury out, then well
    take the static triers.

[51]

The
    defence did not make a formal application under s. 640(2.1) to have the sworn
    and unsworn panels excluded, and to have the trial judge appoint static triers.
    But I would treat their decision to choose static triers as, in effect, an
    application to exclude both unsworn and sworn jurors. Otherwise form would supersede
    substance. Had the trial judge asked one additional question, Are you then
    applying for an order under s. 640(2.1), defence counsel would undoubtedly
    have answered yes.

[52]

I
    would not give effect to the appellants submissions on this first issue. The
    jury was properly constituted.

(2)

Did the trial judge err by refusing to leave self-defence with the jury?

(a)

Overview

[53]

A
    trial judge should leave with the jury any defence that has an air of
    reality. In a brief ruling, the trial judge found that the appellants claim
    of self-defence had no air of reality and he refused to leave this defence for
    the jurys consideration.

[54]

The
    appellants submit that in his ruling the trial judge erred in two ways. First, he
    took a view of the evidence least favourable to the defence when he should have
    taken a view most favourable to the defence. And second, he made substantive
    findings on the elements of the defence, instead of just determining whether
    there was some evidence to support each element. The appellants submit that
    self-defence had an air of reality and should have been left with the jury. On
    this ground alone, the appellants argue, they are entitled to a new trial.

[55]

This
    retrial took place between October and December, 2013. Earlier that year,
    Parliament amended the self-defence provisions of the
Criminal Code
.
    The trial judge analyzed whether self-defence should be left with the jury
    under the new provisions. He cannot be faulted for doing so. The prevailing
    view in the Ontario Superior Court at the time was the new provisions applied
    to homicides that took place before the amendment but were tried after the
    amendment. In 2015, however, this court held that the former self-defence
    provisions, not the new self-defence provisions, applied to homicides that took
    place before the amendment:
R. v. Bengy
, 2015 ONCA 397, 325 C.C.C.
    (3d) 22.

[56]

Thus,
    the applicable self-defence provisions in this case are former ss. 34(2) and
    37. I will therefore not focus on the trial judges reasons or the errors
    alleged by the appellants, and will instead reconsider whether self-defence had
    an air of reality under the old legislation. For reasons I will explain, I have
    concluded that the appellants claim of self-defence under either former
    provision did not have an air of reality. Although the trial judge applied the
    wrong legislation, he came to the right decision. I would uphold his decision
    and find that his reliance on the new self-defence provisions, instead of the
    old provisions, caused no substantial wrong or miscarriage of justice.

(b)

The air of reality
    test

[57]

A
    trial judge must put to a jury any defence that has an air of reality. An air
    of reality exists when there is evidence in the record on which a properly
    instructed jury, acting reasonably, could acquit. Put differently, the court
    asks: is the evidence relied on reasonably capable of supporting the inferences
    required to acquit the accused? If the answer is yes, the defence must be put
    to the jury. If the answer is no, the defence must not be put to the jury. To
    do so in the absence of an air of reality to the defence would invite confusion
    and unreasonable verdicts. Whether a defence has an air of reality is a
    question of law. Thus, the trial judge errs in law by not leaving with the jury
    a defence that has an air of reality:
R. v. Cinous
, 2002 SCC 29,
    [2002] 2 S.C.R. 3, at para. 55.

[58]

In
Cinous
, McLachlin C.J.C. and Bastarache J., writing jointly,
    elaborated on how the air of reality test should be applied.

·

The trial judge should consider all the evidence but assume the
    evidence relied on by the accused is true. The trial judge should not make
    findings of credibility.

·

The air of reality test applies to each element of a defence. As
    long as each element is supported by some direct evidence, or may be inferred
    from circumstantial evidence, the trial judge must put the defence to the jury.

·

The trial judge should not decide the substantive merit of the
    defence, or even whether the defence is likely or not likely to succeed.
    Whether the defence has merit is for the jury to decide. The trial judge should
    simply determine whether there is a real issue that should be left for the
    jury.

·

If the defence has an objective reasonableness component  as
    self-defence does  that component cannot be established by direct evidence.
    The trial judge must decide whether it can reasonably be inferred from
    circumstantial evidence; that is, evidence from which the fact in issue can be
    inferred.

·

To assess whether circumstantial evidence is reasonably capable
    of supporting the inferences the accused wants the jury to draw, the trial
    judge is entitled to engage in a limited weighing of the evidence.

(c)

The former s. 34(2)

[59]

A
    person who intentionally takes anothers life can justify the killing by making
    out the elements of self-defence. But, as McLachlin C.J.C. and Bastarache J.
    said in
Cinous
,
at
    para. 124: This defence is intended to cover situations of last resort.

[60]

The
    former s. 34(2) of the
Code
provided as follows:

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

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

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

[61]

As
    elaborated on in
R. v. Petel
, [1994] 1 S.C.R. 3, this defence contains
    three elements:

·

The accused must have been unlawfully assaulted or reasonably
    believed that he was being unlawfully assaulted.

·

The accused must reasonably fear that he would be killed or
    seriously injured by the assault.

·

The accused must reasonably believe that he could not save
    himself from death or serious injury except by killing the person who assaulted
    him.

[62]

Each
    of these three elements of the defence has both a subjective and an objective component.
    The subjective component focuses on the accuseds beliefs and perceptions. The
    objective component focuses on the reasonableness of the accuseds beliefs and
    perceptions. For the defence to be left with the jury both the subjective and
    objective components of each element of the defence must have an air of
    reality. The objective reasonableness component of the third element of
    self-defence is critical in this case. For that component, if for no other
    reason, the appellants claim of self-defence fails the air of reality test.

[63]

In
R. v. Pilon
, 2009 ONCA 248, 243 C.C.C. (3d) 109, Doherty J.A.
    discussed at some length the notion of reasonableness under s. 34(2). He
    emphasized at para. 73 that [r]easonableness connotes a community standard
    against which the actions of individuals within the community can be measured.
    Killings the community  represented by the jury  finds unreasonable cannot be
    justified by a claim of self-defence. But the reasonableness inquiry is not
    purely objective, as the jury must consider the relevant circumstances as the
    accused perceived those circumstances. The jury then tests that perception
    against the community standard of reasonableness: at para. 74. Doherty J.A.
    continued, and in doing so, drew an important distinction at para. 75:

I see a world of difference, however, between testing the
    reasonableness of an accuseds apprehension and belief in the circumstances as
    the accused perceived them and testing the reasonableness of that apprehension
    and belief in light of the appellants personal moral code or world view. It
    may well be, given the criminal sub-culture in which the appellant operated,
    that he lived by the motto kill now or be killed later. In assessing the
    reasonableness of the appellants conduct, however, the jury cannot accept that
    motto. To do so would be to effectively eliminate the reasonableness
    requirement from the defence of self-defence. Instead of reflecting community
    values and the community perception of when a killing is justified, the validity
    of the self-defence justification would lay entirely in the eye of the killer.
    A law of self-defence that justified what would otherwise be murder entirely on
    the basis of the accuseds personal belief as to the need to kill to save
    himself would constitute a stunning devaluation of the rights to life and
    security of the person to which all members of the community are entitled.

(d)

Summary of the key
    evidence

[64]

Whether
    the appellants claim of self-defence had an air of reality must be assessed at
    the time Grant fired the shots that killed Saez. A jury would have to accept
    that Grant reasonably believed that his own safety and survival and that of
    Vivian depended on shooting at the occupants of the Honda and killing Saez at
    that moment:
Cinous
, at para. 124. Still, the events at Dr. Fleas,
    which occurred about 15 minutes earlier, are relevant because they provide
    context for the appellants beliefs and the reasonableness of their reactions
    at the time of the shooting. I will therefore summarize the key evidence
    concerning the two robberies at Dr. Fleas and the later shooting on John
    Garland Boulevard. In doing so, I will focus on the appellants own evidence
    and other evidence they accept.

(i)

The two robberies at Dr. Fleas

[65]

Grant
    and Vivian were long-time friends. On June 9, 2007, they went shopping at Dr.
    Fleas, a large flea market near Highway 27 and Albion Road, where they were
    regular customers. They drove there in Grants Mercedes-Benz SUV, and arrived
    just before 2 p.m. Grant was wearing a gold chain and Vivian was wearing a gold
    and diamond cross pendant on a chain, which he had bought at the market a month
    earlier for $1500. Saez, Omar, Akwaboah and Dale arrived at the market together
    around 2:15 p.m. Grant and Vivian had never seen any of them before.

[66]

The
    first robbery took place just before 3 p.m. Saez and Omar confronted Vivian in
    an aisle of the market. Saez grabbed Vivians pendant, snapping it off the chain.
    Saez and Omar then left the market area. Vivian and Grant followed them because
    Vivian wanted his pendant back. Saez then pulled out a semi-automatic handgun,
    pointed it at Vivian, and said what pussy. Omar also pulled out and
    brandished his semi-automatic handgun. Vivian and Grant were scared and retreated
    back into the market.

[67]

Seconds
    later, Akwaboah grabbed the collar of Grants sweater from behind, broke the gold
    chain around Grants neck, and ran down an aisle. Vivian and Grant ran after
    Akwaboah and were confronted by Dale. The four started fighting. Dale punched
    Grant in the face several times and inflicted a cut under his right eye.
    Security and other personnel from the market arrived quickly and broke up the
    fight. The owner of the market gave Grant his broken chain, which he had found
    on the floor.

[68]

Neither
    Grant nor Vivian wanted the police called. Both were drug traffickers. Grant
    was carrying marijuana, and had more drugs and a loaded semi-automatic handgun
    in his Mercedes. Vivian was carrying marijuana and about $2,000 in drug money.
    After the fight ended, they left the market quickly. It was just before 3 p.m.,
    about 15 minutes before the shooting. Grant was driving and he and Vivian
    talked about what had happened. Vivian claimed he became concerned about the
    way Grant was driving, so the two changed places and Vivian took over the
    wheel.

[69]

Meanwhile
    Saez, Omar, Akwaboah and Dale went to a nearby Subway sandwich shop. From there,
    Akwaboah called his friend Paddy for a ride. Paddy picked up the four men in
    his Honda Civic. Akwaboah was in the front passenger seat, Saez in the rear
    driver side seat, Dale in the rear middle seat, and Omar in the rear passenger
    side seat. Paddy drove east on Albion Road to Kipling Avenue, and then turned
    right to go south to John Garland Boulevard.

(ii)

The
    shooting

[70]

Grants
    and Vivians evidence about the shooting and the events leading up to it are as
    follows. About 15 minutes after the events at Dr. Fleas, Vivian and Grant were
    in Grants Mercedes in the centre lane of Kipling Avenue, travelling south, when
    they noticed a car was tailing them. The car, a Honda, then pulled up beside
    them in the curb lane. Grant and Vivian realized that in the Honda were the men
    with whom they had had an altercation at the market. The man in the rear driver
    side seat, Saez, taunted Grant and Vivian by holding Vivians pendant out the
    car window.

[71]

As
    Grant and Vivian were cursing to each other about the taunting, the Honda
    banged a right from Kipling Avenue onto John Garland Boulevard. Vivian wanted
    his pendant back, so he followed the Honda and also made a right turn onto John
    Garland Boulevard. Grant said Vivians decision to follow the Honda was
    unexpected.

[72]

Vivian
    said that as he made the right turn, he saw Omar put his gun out of the rear
    passenger side window. Grant also saw Omars gun as the Honda turned onto John
    Garland Boulevard. Both Grant and Vivian admitted Omars gun was never pointed
    at them. They said they believed Saez also had a gun, but they agreed he never
    brandished it as they pursued the Honda.

[73]

Vivian
    was behind the Honda when he saw Omars gun. He shifted the Mercedes from the
    curb lane to the passing lane and accelerated to catch up to the Honda. He
    claimed he did so to try to pass the Honda and get out of harms way. Grant
    also acknowledged that the Honda was ahead of the Mercedes and that Vivian had
    to accelerate quickly to catch up.

[74]

Grant
    said that as soon as he saw Omar flash his gun, he withdrew his own loaded gun
    from the glove department and started shooting. He did so because he believed
    that firing his gun was the only way to save his life and that of his friend
    Vivian. He had no choice. His instinct was that he and Vivian were going to be
    killed. Grant also said that everything happened very fast, and he did not have
    time to think things through. He testified: [W]hen I saw the gun, I just  I
    just  I panicked.

[75]

Grant
    fired 13 times into the drivers side of the Honda. He said he did not aim
    specifically at Omar, but agreed that he intended to do as much damage as
    possible to the Hondas occupants. Twelve of the 13 shots hit the Honda. Six
    shots hit Saez, who was killed. Only Akwaboah was not wounded.

[76]

Forensic
    evidence shows that before Grant opened fire, the Mercedes pursued the Honda
    for approximately 150 metres along John Garland Boulevard, west of Kipling
    Avenue. The Mercedes travelled another 80 to 85 metres while Grant was
    shooting. During this time, Grant never told Vivian to stop the car or turn
    away from the danger. Nor did he fire a warning shot. Vivian never stopped or
    turned around, and he made no attempt to stop Grant from shooting. After the
    shooting, Vivian stepped on it and they drove off.

(e)

The appellants claim
    of self-defence under former s. 34(2) has no air of reality

[77]

The
    Crown acknowledges and I agree that Grant had the necessary subjective belief
    to found a claim of self-defence. Assuming his evidence to be true, and taking
    into account what occurred at Dr. Fleas, Grant believed he was being assaulted
    when Omar brandished his gun, he feared he would be killed, and he believed he
    could not save himself and Vivian from being killed except by shooting at the
    Honda.

[78]

But
    I also agree with the Crown that Grants subjective beliefs were not reasonable
    beliefs. Although I doubt that there was any air of reality to the reasonableness
    component of either of the first two elements of s. 34(2), I will focus on the
    reasonableness component of the third element. In my view, Grants belief that
    he could not save himself and Vivian from death or serious injury except by
    shooting at the Honda was an unreasonable belief.

[79]

I
    accept that events happened rapidly on Kipling Avenue and John Garland
    Boulevard, and a reasonable person would not have had time for a measured
    response. But Grants claim that he could not preserve his life and the life of
    his friend Vivian except by shooting at the Honda was unreasonable. Though a
    reasonable person may have felt threatened, Grants claim that he had no choice
    but to shoot at the Honda revealed the kill or be killed mentality, which
    Doherty J.A. warned against in
Pilon
. And it was a manifestly
    unreasonable mentality. It led Grant to rush to extreme, unnecessary, and
    unreasonable violence.

[80]

The
    third objective component under s. 34(2) will only be satisfied when the
    accused reasonably believed there were no alternatives available but to kill. McLachlin
    C.J.C. and Bastarache J. explained, at para. 123 of
Cinous
:

Section 34(2) does not require that an accused rule out a
    few courses of action other than killing. The requirement is that the
    accused have believed on reasonable grounds that there was
no
    alternative course of action
open to him at that time, so that he
    reasonably thought he was obliged to kill in order to preserve himself from
    death or grievous bodily harm. [Emphasis added.]

[81]

Here,
    the Honda was moving away from Grant when Omar flashed his gun. And Omar did
    not point his gun at the appellants. Omar was not even in a position to shoot
    at the appellants, either when the Mercedes was behind the Honda or when the
    Mercedes was just passing the Honda. Only when the Mercedes pulled even with
    the Honda, 150 metres after turning onto John Garland Boulevard, did Grant open
    fire. Yet, he had several other ways of dealing with the threat he perceived.
    He could not reasonably believe shooting at the Honda was his only option.

[82]

A
    reasonable person would not have grabbed his loaded gun and fired 13 shots into
    a car with 5 occupants and with the stated intention of doing as much damage as
    he could to those occupants. A reasonable person would have told Vivian that he
    had seen a gun and told him not to turn onto John Garland Boulevard, or if he
    turned, to turn around or to stop, or at least to slow down. A reasonable
    person, if minded to use a gun, might at least have fired a warning shot. Grant
    did none of these things, and gave no explanation for why he did not.

[83]

Vivians
    reaction, too, was not reasonable. A reasonable person, after seeing Omars gun,
    would not have followed the Honda for 150 metres along John Garland Boulevard.
    A reasonable person would have turned around or braked, not accelerated so the
    Mercedes was level with the Honda, giving Grant an opportunity to fire. As
    Vivian acknowledged in his evidence: I could have done a lot of things Yet he
    did none of them.

[84]

Under
    the third element of self-defence in s. 34(2), the accuseds belief that he had
    no other option but to kill must have been objectively reasonable:
Cinous
,
    at para. 121. Grant and Vivian have not put forward any evidence from which an
    air of reality for this requirement can be inferred. They had several obvious
    courses of action other than following and shooting at the Honda. They pursued
    none of them and gave no explanation why they did not do so. If for no other
    reason, as in
Cinous
, Grants and Vivians claim of self-defence must
    fail on the reasonableness component of this third element. Their claim that Grant
    had no choice but to shoot at the Honda was unreasonable.

(f)

The appellants
    claim of self-defence under former s. 37 had no air of reality

[85]

The
    former s. 37(1) provided:

37. (1) Every one is justified in using force to
    defend himself or any one under his protection from assault, if he uses no more
    force than is necessary to prevent the assault or the repetition of it.

[86]

To
    make out self-defence under this provision, an accused had to meet three
    requirements:

·

The accused was unlawfully assaulted.

·

The accused used force to defend himself from the assault.

·

The accused used no more force than was necessary to prevent the
    assault or prevent it from continuing.

[87]

The
    third requirement is the critical requirement. Section 37 reflects the idea of
    proportionate force:
R. v. Mulder
(1978), 40 C.C.C. (2d) 1 (Ont.
    C.A.). The force used to defend oneself must be both objectively necessary and
    objectively proportionate:
R. v. Ribic
, 2008 ONCA 790, 238 C.C.C. (3d)
    225, at para. 62. Grants shooting 13 times into the Honda was neither. First,
    it was not necessary. As I said in discussing s. 34(2), Grant and Vivian had
    other alternatives than pursuing and shooting the men in the Honda. Second,
    Grants shooting at the Honda was not proportionate. Omars gun was not pointed
    at him and he did not know if it was loaded. And even accepting his evidence,
    he fired not once or twice, but 13 times, into a car with 4 passengers and a
    driver, and with the express intent to cause as much damage as possible. The
    appellants claim of self-defence under s. 37 had no air of reality.

[88]

I
    would not give effect to this ground of appeal.

(3)

Did the trial judge err by refusing to leave provocation with the jury?

[89]

The
    defence of provocation is codified in s. 232 of the
Criminal Code
. If
    its requirements are met, it reduces murder, which is an intentional killing,
    to manslaughter, which is not. Sections 232(1) and (2) provide:

232 (1) Culpable homicide that otherwise would be
    murder may be reduced to manslaughter if the person who committed it did so in
    the heat of passion caused by sudden provocation.

(2) Conduct of the victim that would constitute an
    indictable offence under this Act that is punishable by five or more years of
    imprisonment and 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 their passion to cool.

[90]

The
    defence of provocation is a concession to human frailty. In some circumstances,
    an accuseds unlawful conduct from a loss of self-control, though blameworthy,
    is understandable. But not all instances of loss of self-control will be
    excused. Provocation under s. 232 has both an objective and a subjective
    element. The objective element requires that there be a wrongful act or insult,
    which is sufficient to deprive an ordinary person of the power of self-control.
    The subjective element requires that the accused must have acted in response to
    the provocation and on the sudden before his or her passion had time to cool:
R.
    v. Cairney
, 2013 SCC 55, [2013] 3 S.C.R. 420, at paras. 32-34; and
R.
    v. Tran
, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 25 and 36.

[91]

The
    objective element of the defence, with its focus on the ordinary person, is
    meant to reflect contemporary societys values. As Charron J. said in
Tran
,
at para. 30: [B]ehaviour which
    comports with contemporary societys norms and values will attract the laws
    compassion. The ordinary person, as Lord Diplock explained in
D.P.P v.
    Camplin
, [1978] A.C. 705 (H.L.), means an ordinary person of either sex,
    not exceptionally excitable or pugnacious, but possessed of such powers of
    self-control as everyone is entitled to expect that his fellow citizens will
    exercise in society as it is today. And as McLachlin C.J.C. said in
Cairney
,
at para. 40, a certain threshold level
    of self-control is always expected of the ordinary person [T]he standard
    should not be adapted to accommodate a particular accuseds innate lack of
    self-control.

[92]

The
    trial judge held that provocation had no air of reality and refused to leave
    this defence with the jury. His ruling focused on the ordinary person and the
    objective element of the defence.

As for the partial defence of provocation, s. 232(2) of the
Criminal
    Code
requires that an ordinary reasonable person would have been deprived
    of the power of self-control by the deceased or his associates' wrongful acts
    or insults. This issue must be viewed in the earlier context of what had
    happened at the flea market. The deceased Saez had earlier stolen the pendant
    from the accused Vivian. Later, Saez and his associate, Omar, exposed their
    guns to the accused outside the flea market, although they never pointed the
    guns at the accused. Approximately 20 minutes later, the deceased Saez taunted
    both accused by flashing the stolen pendant at the accused. The pendant had no
    sentimental value to the accused Vivian. As well, Mustafa Omar taunted the
    accused by pointing his gun into the air after the [Honda] Civic was well in
    front of the SUV. This was another insult to both accused.

The issue is whether these two insults would have been
    sufficient to deprive an ordinary reasonable male of similar age and background
    to the accused to have lost the power of self-control. I am satisfied that the
    two insults would not have had that effect on an ordinary person. The ordinary
    person would have been angered but not to the extent of losing self-control.
    After all, the accused were not physically assaulted or even threatened with
    any form of immediate assault.

In the result, I find that the partial defence of provocation
    lacks an air of reality, so that I will not put the partial defence to the jury
    nor may defence counsel.

[93]

The
    appellants submit that the trial judge erred in his ruling because he relied on
    a view of the evidence least favourable to the defence, failed to consider what
    had earlier happened at the flea market, and instead of considering whether
    there was some evidence supporting the defence, conclusively determined that it
    had no merit. I do not agree with the appellants submission. As I read the
    trial judges ruling, though he was mistaken in saying Omar and Saez never
    pointed their guns at the appellants at Dr. Fleas, he considered the evidence
    favourable to Grant and Vivian, including the robberies at the flea market, and
    concluded that the evidence did not give an air of reality to the objective
    element of the defence. I agree with his conclusion.

[94]

Indeed,
    the trial judges finding that the appellants were not physically assaulted or
    even threatened with any form of immediate assault was supported by their own
    evidence. Both Grant and Vivian admitted that the Honda was ahead of the
    Mercedes and driving away when Omar flashed his gun, and that he did not fire
    it or even point it at either appellant. This finding, supported by the
    appellants own evidence, bolsters the trial judges conclusion that the taunts
    from Saez and Omar may have angered the ordinary person but would not have
    deprived the ordinary person of self-control.

[95]

But
    even assuming Grant had lost self-control  and that was not his evidence  his
    response was well outside the threshold level of self-control we expect of all
    persons in our society. Few slights, if any, should be answered with the kind
    of violence Grant inflicted on those in the Honda. The absence of an air of
    reality to the objective element of provocation is sufficient to decide this
    ground of appeal.

[96]

It
    seems to me, however, that the appellants face two other hurdles in trying to
    show an air of reality to this defence: on their own evidence, the subjective
    element of provocation has no air of reality; and their claim of being provoked
    is inconsistent with Grants claim that he opened fire out of self-defence.

[97]

To
    show an air of reality for the subjective element of provocation, Grant had to
    put forward some evidence that he was provoked by an act or insult and in
    response to the provocation acted on the sudden before there was time for his
    passion to cool. The robberies at Dr. Fleas provide context for what occurred
    later but those robberies were not capable of constituting the wrongful acts
    that could give an air of reality to provocation. Grant could not have acted
    on the sudden to these robberies because they occurred at least 15 minutes
    earlier. And on their evidence, the appellants had written off Vivians
    pendant, had left the events at Dr. Fleas behind, and were on their way home.

[98]

So
    the acts or insults on which the claim of provocation rested were Saezs
    holding up Vivians pendant to taunt the appellants and Omars brandishing of
    his gun. But Grant did not say he reacted to these insults or taunts out of
    anger or rage or any loss of self-control. He claimed he opened fire because he
    feared for his life and for Vivians life. That is a claim of self-defence, not
    provocation.

[99]

Grant
    did say he had to react quickly, and at one point in his testimony, he said he
    panicked. But it was a panic borne not because he was provoked, but because he
    said he feared for his life. On his own evidence, Grants state of mind was
    self-preservation, not the rage or loss of control required for provocation.

[100]

Although the trial
    judge did not address the subjective element of provocation, and asked counsel
    to focus their submissions on the objective element, I am not satisfied that
    the appellants evidence gives an air of reality to this subjective element.

[101]

Finally, the
    appellants claim of being provoked does not sit well with their principal defence
    of self-defence. Again, the entire tenor of Grants evidence was that he opened
    fire to save himself and Vivian, not because he was enraged or out of control.

[102]

In deciding
    whether a defence has an air of reality, a trial judge must look at all the
    evidence. And if there is some evidence giving an air of reality to a defence
    that defence must be left with the jury, even if it appears inconsistent with
    the appellants own evidence or principal narrative.

[103]

Thus, in both
R
.
    v. Gill
, 2009 ONCA 124, 241 C.C.C. (3d) 1, and
R. v. Angelis
,
    2013 ONCA 70, 296 C.C.C. (3d) 143, this court held that provocation should have
    been left with the jury together with self-defence, even though the accused in
    each case disavowed acting out of anger or a loss of control. But in both cases
    the Crown had argued to the jury that the accuseds actions were motivated by
    anger. In doing so, the Crown had implicitly acknowledged the existence of some
    evidence of provocation.

[104]

In the case
    before us, the Crown argued that the appellants acted not out of anger, but out
    of revenge and because they had been disrespected. And there was no evidence
    in the record apart from the appellants evidence that would give an air of
    reality to the defence of provocation. The trial judge was correct not to leave
    this defence with the jury. I would not give effect to this ground of appeal.

(4)

Did the trial judge err in his instructions on reasonable doubt?

[105]

In
R. v.
    Lifchus
, [1997] 3 S.C.R. 320, at para. 39, Cory J. set out a suggested
    jury charge on reasonable doubt. It contains five paragraphs:

(1)

The term beyond a reasonable
    doubt has been used for a very long time and is a part of our history and
    traditions of justice. It is so engrained in our criminal law that some think
    it needs no explanation, yet something must be said regarding its meaning.

(2)

A reasonable doubt is not an
    imaginary or frivolous doubt. It must not be based upon sympathy or prejudice.
    Rather, it is based on reason and common sense. It is logically derived from
    the evidence or absence of evidence.

(3)

Even if you believe the accused is
    probably guilty or likely guilty, that is not sufficient. In those
    circumstances you must give the benefit of the doubt to the accused and acquit
    because the Crown has failed to satisfy you of the guilt of the accused beyond
    a reasonable doubt.

(4)

On the other hand you must
    remember that it is virtually impossible to prove anything to an absolute
    certainty and the Crown is not required to do so. Such a standard of proof is
    impossibly high.

(5)

In short if, based upon the
    evidence before the court, you are sure that the accused committed the offence
    you should convict since this demonstrates that you are satisfied of his guilt
    beyond a reasonable doubt.

[106]

The suggested
    charge has been adopted in
Watts Manual of Criminal Jury Instructions
(Toronto: Thomson Carswell, 2012). As Cory J. emphasized, however, the
    suggested charge is not a magic incantation that needs to be repeated word for
    word. It is nothing more than a suggested form that would not be faulted if it
    were used: at para. 40.

[107]

In
R. v.
    Starr
, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, Iacobucci J.
    suggested adding to the
Lifchus
charge the following sentence: Proof
    beyond a reasonable doubt falls
much closer
to
    absolute certainty than to proof on a balance of probabilities.

[108]

The trial judge
    followed the
Lifchus
/
Starr
model charge. But in doing
    so, he departed in two ways, and the appellants argue these departures were
    errors that rendered his charge improper. First, though he added the
Starr
sentence, he omitted the word much, and failed to correct this error by also
    omitting the fifth paragraph of
Lifchus
that
the jury could convict only if they were sure of the
    accuseds guilt. Second, the trial judge added an ingredient to the model
    charge that should not have been there. He told the jury they should be able to
    articulate a reason for having a reasonable doubt.

[109]

I do not think
    the first error the appellant alleges was an error at all. Neither the addition
    of much or even closer or sure is mandatory. The important point a trial
    judge must convey to a jury is that proof beyond a reasonable doubt requires
    something less than absolute certainty but more than probable guilt. The trial
    judge made that very point, and his addition that a reasonable doubt falls
    closer to certainty, though not mandatory, reinforced the point.

[110]

The second error
    the appellants allege is more concerning. This court and the Supreme Court have
    repeatedly said that it is improper to instruct jurors they must be able to
    articulate a reason for any reasonable doubt they may have. The instruction is
    improper because jurors may legitimately have a reasonable doubt, yet not be
    able to state a reason for it:
R. v. Jenkins
(1996), 29 O.R. (3d) 30
    (C.A.), at p. 58;
R. v. Carriè
re
(2001)
,
159 C.C.C. (3d) 51 (Ont. C.A.), at paras. 26-27;
    and
Lifchus
, at para. 30
.

[111]

Still this
    instruction, though improper, does not justify finding reversible error in the
    trial judges overall charge on reasonable doubt. Missing words or extra
    ingredients that should not be there do not by themselves invalidate a trial
    judges charge. Instead of focusing on individual words or isolated parts of a
    charge, an appellate court has to read the charge as a whole. If, when read as
    a whole, an appellate court is satisfied the jury could not have misunderstood
    the correct burden of proof, then the charge should be upheld. Put differently,
    an appellate court asks whether there is a reasonable possibility the trial
    judges charge could have misled the jury into applying a lesser burden of
    proof:
R. v. Brydon
, [1995] 4 S.C.R. 253, at para. 19. If the answer to
    that question is no, then isolated parts of the charge that deviate from the
    model charge will not amount to reversible error. Substantial compliance with
    the model charge, not perfect compliance, is what is required:
Starr
, at
    para. 233;
R. v. Beauchamp
, 2000 SCC 54, [2000] 2 S.C.R. 720, at para.
    16;
R. v. Russell
, 2000 SCC 55, [2000] 2 S.C.R. 731, at para. 2.

[112]

The trial
    judges charge in this case substantially complied with the model charge.
    Despite the improper instruction that jurors should be able to articulate a reason
    for any reasonable doubt, on reading the charge as a whole, I am satisfied the
    jury could not have misapprehended the degree of proof required. I note that
    both this court and the Supreme Court have upheld charges containing this
    improper instruction: see
Russell
;
Beauchamp
; and
Carriè
re
.
    Here, that the jury acquitted the appellants of first degree murder is strong
    evidence they correctly understood the burden of proof for guilt.

[113]

I would not give
    effect to this ground of appeal.

(5)

Did the trial judge err in his
W.(D.)
instruction?

[114]

Likely no case
    in Canadian criminal law has been cited more often than Cory J.s judgment in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742. In
W.(D.)
,
at p. 758, Cory J. set out a model
    instruction for assessing credibility when an accused testifies. The
    instruction has three components:

First, if you believe the evidence of the accused, obviously
    you must acquit.

Second, if you do not believe the testimony of the accused but
    you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the
    accused, you must ask yourself whether, on the basis of the evidence which you
    do accept, you are convinced beyond a reasonable doubt by that evidence of the
    guilt of the accused.

[115]

The purpose of
    this instruction is to tell jurors that the principle of reasonable doubt
    applies to their credibility assessment. Jurors are entitled to have a
    reasonable doubt about an accuseds guilt even if they do not believe the
    accuseds evidence. Thus, the
W.(D.)
instruction is meant to ensure
    jurors do not decide on an accuseds guilt simply by choosing whether to
    believe the Crowns evidence or the accuseds evidence. Turning the case into a
    credibility contest does not take account of the reasonable doubt standard.
    Although a trial judge need not slavishly follow the exact words of Cory J.s
    proposed instruction, he or she should convey its substance to the jury:
W.(D.)
,
    at p. 758.

[116]

The appellants
    acknowledge that the trial judge gave a
W.(D.)
instruction. But they
    contend he embellished it in four ways, and in so doing invited the jury to do
    what
W.(D.)
warns against: engage in a credibility contest and decide
    the case by choosing whether to believe the appellants or the witnesses for the
    Crown. I do not agree with the appellants contention.

[117]

Part of the trial
    judges
W.(D.)
instruction and passages surrounding it are as follows (with
    the four parts the appellants challenge underlined):

It should be obvious to you that the
    evidence favouring the Crown and that favouring the particular accused on these
    essential matters cannot stand together
. Each version is at odds with
    the other. Since each version cannot each be factually true, you must assess
    the credibility and reliability of the witnesses and the accuseds evidence,
    including physical evidence found in the exhibits supporting each version.

I direct you that you must consider these essential matters on
    the following basis, only after having first assessed all the evidence and the
    credibility and reliability of the witnesses and the physical evidence relating
    to these essential matters. First, if you accept the evidence favouring the
    particular accused on the particular essential matter and find it to be
    factually true
when weighed against the contradictory
    evidence favouring the Crown
, you must acquit the accused to whom the
    essential matter relates. I will repeat that. If you find the evidence
    favouring the accused, including his own testimony, on the particular essential
    matter and find it to be factually true when
weighed
    against the contradictory evidence favouring the Crown
, you must acquit
    the accused to whom the essential matter relates.

Second, even if you do find as fact that the evidence favouring
    the accused on the essential matter is true but have a reasonable doubt as a
    result of it, you must also acquit the particular accused. I will repeat that. Second,
    even if you do not find as fact that the evidence favouring the accused on the
    essential matter is true, but have a reasonable doubt as a result of it, you
    must also acquit the accused.

Third, even if you do not have a reasonable doubt on the
    particular essential matter, because you reject the evidence favouring the
    accused as untrue, you must still determine whether the Crown has convinced you
    of the guilt of the particular accused beyond a reasonable doubt on the basis
    of credible and reliable evidence which you do accept and find to be factually
    true after having considered all the evidence as a whole. I will repeat that as
    well. Third, even if you do not have a reasonable doubt on the particular
    essential matter because you reject the evidence favouring the accused as untrue,
    you must still determine whether the Crown has convinced you of the guilt of
    the particular accused beyond a reasonable doubt on the basis of credible and
    reliable evidence which you do accept and find to be factually true after
    having considered all of the evidence as a whole.

Finally, keep in mind that you are not
    compelled to choose between the evidence favouring the Crown and the evidence
    favouring the accused on essential matters, particularly if each version
    appears to be credible in the sense that you are unable, after reasonable and
    thorough determination, to determine which witnesses are telling the truth
.

Rather, the Crown bears the burden of proving the accuseds
    guilt beyond a reasonable doubt,
though, of course, you
    should do your best to determine who is telling the truth and who is not
.
    After all, your sworn duty is to render true verdicts based solely on the
    evidence. That, necessarily, involves a search for truth.

[118]

I will now
    address each of the challenged passages, keeping in mind that the charge must
    be read as a whole and an appellate court must be satisfied that the jury
    could not have been under any misapprehension as to the correct burden and
    standard of proof to apply:
W.(D.)
, at p. 758.

[119]

First, the
    appellants submit that when the trial judge said it should be obvious to the
    jury the evidence favouring the Crown and the evidence favouring the accused
    could not stand together, he was setting up a credibility contest. I disagree.
    That the two versions were at odds, was as the trial judge said, obvious, and
    would have been obvious to the jury.

[120]

Second, the trial
    judge added a gloss to the first component of
W.(D.)
by using the
    phrase when weighed against the contradictory evidence favouring the Crown.
    The gloss is not in the actual
W.(D.)
instruction. Central, however,
    to the proper application of
W.(D.)
is that the accuseds evidence be
    considered not in isolation but in the context of the evidence as a whole.

[121]

Cory J., at p.
    757, recognized the importance of assessing an accuseds evidence in the
    context of the evidence as whole in the passage in his reasons immediately
    preceding his proposed instruction:

In a case where credibility is important, the trial judge must
    instruct the jury that the rule of reasonable doubt applies to that issue. The
    trial judge should instruct the jury that they need not firmly believe or
    disbelieve any witness or set of witnesses. Specifically, the trial judge is
    required to instruct the jury that they
must
acquit the accused in two situations. First, if they believe the accused. Second,
    if they do not believe the accused's evidence but still have a reasonable doubt
    as to his guilt after considering the accused's evidence in the context of the
    evidence as a whole. [Emphasis in original.]

[122]

By using the
    weighed against gloss in the first component of
W.(D.)
,
the trial judge was telling the jury
    they could not find a reasonable doubt by considering only the appellants
    evidence. They had to consider their evidence in the light of the rest of the
    evidence. It might have been better had the trial judge told the jury to
    consider the appellants evidence in the context of the evidence as a whole. But
    using the words weighed against the contradictory evidence favouring the
    Crown reflected the reality that the Crowns evidence and the appellants
    evidence did contradict each other. And, though the sufficiency of this charge
    must be assessed by reading it as a whole, both in
R. v. Campbell
(2003)
, 170 O.A.C. 282 (C.A.), and
R.
    v. Hoohing
, 2007 ONCA 577, a
W.(D.)
instruction containing the
    same gloss was upheld by this court.

[123]

Third, the
    appellants say that telling the jury they were not compelled to choose between
    the evidence favouring the Crown and the evidence favouring the accused was
    also improper. They say the jury should have been told they must not decide the
    case by choosing between competing versions. This fine distinction the
    appellants seek to make does not resonate with me. In listening to and reading
    the charge as a whole, the jury would have understood that they were not to
    decide the case by choosing whether to believe the appellants or the Crowns
    witnesses. They would have understood that they had to apply the reasonable
    doubt standard to the evidence. Again, in
Hoohing
, this court upheld a
W.(D.)
instruction containing the identical passage the appellants
    complain about.

[124]

Finally, the
    appellants say that the trial judges added phrase, though, of course, you
    should do your best to determine who is telling the truth and who is not  a
    phrase not in the charge in
Hoohing
 is
fatal to the charge in this case. I disagree because of the
    context in which the trial judge used the phrase. I see nothing wrong with
    encouraging jurors to try to figure out who is telling the truth as long as
    they recognize they might not be able to do so, and thus be left with a
    reasonable doubt about an accuseds guilt. The trial judges suggestion to the
    jurors to search for the truth was not said in a vacuum. It was prefaced again
    by his emphasis on the Crowns burden to prove the appellants guilt beyond a
    reasonable doubt. Indeed, the trial judges instruction reflects what this Court
    said in
R. v. Hull
, 2006 CanLII 26572 (Ont. C.A.), at para. 5:

W. (D.)
and other authorities prohibit triers of fact
    from treating the standard of proof as a credibility contest. Put another way,
    they prohibit a trier of fact from concluding that the standard of proof has
    been met simply because the trier of fact prefers the evidence of Crown
    witnesses to that of defence witnesses. However, such authorities do not
    prohibit a trier of fact from assessing an accuseds testimony in light of the
    whole evidence, including the testimony of the complainant, and in so doing
    comparing the evidence of the witnesses. On the contrary, triers of fact have a
    positive duty to carry out such an assessment recognizing that one possible
    outcome of the assessment is that the trier of fact may be left with a
    reasonable doubt concerning the guilt of the accused.

[125]

The trial
    judges
W.(D.)
instruction did not invite the jury to engage in a
    credibility contest and decide the case by choosing which version of events to
    prefer. Instead, he properly instructed them to assess credibility in
    accordance with
W.(D.)
and the reasonable doubt standard.

[126]

I would not give
    effect to this ground of appeal.

(6)

Did the trial judge make comments that gave rise to a reasonable
    apprehension of bias?

[127]

The appellants
    challenge three comments made by the trial judge over the course of a 25-day
    trial. They contend that these three comments, individually and collectively,
    gave rise to a reasonable apprehension of bias. They say that these comments
    in the absence of the jury and made before the defence called any evidence
    show that the trial judge had pre-judged their guilt and closed his mind to the
    possible merit of the defences of self-defence and provocation.

[128]

The appellants
    submission must be assessed in the light of the high threshold for showing
    bias. We presume judges will be impartial. We presume they will carry out their
    oath of office and act fairly to litigants. This high threshold requires cogent
    evidence to make out a claim of bias. The test to meet, which has stood for
    many years, is would an informed person, viewing the matter realistically, and
    having thought the matter through, conclude that the trial judge would not
    decide the matter fairly:
Committee for Justice and Liberty v. Canada (National
    Energy Board)
, [1978] 1 S.C.R. 369, at p. 394.

[129]

This test
    recognizes that appearances count. Justice must not only be done; it must
    appear to be done. Thus, the test captures both actual bias, which is rarely
    alleged, and the appearance of bias, which is more commonly alleged. In
    applying the test for bias to the trial judges comments in this case, I focus
    on whether the trial judge had merely expressed his tentative views, as the
    Crown submits, or whether he had closed his mind to the defences position, as
    the appellants submit. A trial judge is entitled to express tentative views to
    counsel and their clients. Good counsel welcome a dialogue with the court and
    welcome a judges expression of tentative views against their position because
    these views help counsel focus their arguments on the points the judge is
    having most difficulty accepting. Counsels objective, obviously, is to get the
    judge to reconsider those views. What judges must not do is cross the line and
    pre-judge or close their minds to counsels arguments.

[130]

In my opinion,
    in the three comments the appellants challenge, the trial judge did no more
    than express his tentative views of the case presented to him up to the point
    when he made each of the comments. With the benefit of hindsight, these
    comments would have been better left unsaid. But in the course of a long trial
    the odd inappropriate comment, regrettable as it may be, falls far short of disqualifying
    bias. I now turn to the three comments.

[131]

The first
    comment occurred at the outset of the trial during submissions on the defences
    objection to the Crowns opening statement:

MS. BIRD:   In my submission, Your Lordship, I didn't stray
    outside the permissible bounds. At this point, the credibility of the witnesses
    is what is in issue. Mr. Posner seems to be alluding to something, perhaps a
    self-defence...

THE COURT:        I don't think there's any basis for
    self-defence, obviously, from what I've heard.

MS. BIRD:   No, but I can't imagine how else the  that seems
    to be the implication, and it harkens back to comments made during the
    pre-trial motions about perhaps the people in the blue Honda were the
    aggressors, not the...

THE COURT:        Well, they may have been the initial
    aggressors, but so what?

MS. BIRD:   That would certainly be the Crown's position

[132]

The trial
    judges comment I dont think theres any basis for self-defence, obviously,
    from what Ive heard was understandable. All he had heard was the Crowns
    opening. And this was a retrial. At the first trial the issue to be resolved
    was the identity of the assailants. Neither appellant had testified and neither
    appellant had claimed self-defence. So neither the trial Crown nor the trial
    judge had any idea that self-defence would be a live issue at the second trial.
    In fact it was clear from the exchange that the trial judge anticipated identity
    would be the main issue.

[133]

The second and
    third comments occurred after the close of the Crowns case before the defence
    had called any evidence. These comments were made during the defences
    application to lead evidence of Saezs previous propensity for violence under
    the principle in
R. v. Scopelliti
(1981)
, 34 O.R. (2d) 524 (C.A.). In his submissions on the
    application, Vivians counsel referred to the Crowns opening, in which she had
    said the men in the Honda were not expecting any further violence after they
    left the flea market. He contended that the
Scopelliti
evidence would
    undermine the Crowns theory. His reference to the Crowns opening prompted the
    following exchange, which the appellants submit shows the trial judge had
    already decided the merits of the appellants self-defence and provocation
    defences:

MR. POSNER:       What she's about  what I'm about to read to
    you doesn't go  does not go to the issue of self-defence. It goes to the issue
    of planning and deliberation. Let me read it because it's important. It goes
    right to what we're talking about: "What will be clear from the evidence
    is that in the minds of everyone in that blue car, in the minds of everyone in
    that blue car, the problems in the flea market had been left behind. They had
    no reason to believe that anything else was going to happen." Now, let me

THE COURT:        That seems reasonable to me so far.

MR. POSNER:       That's why we have juries, m'lord. That's why
    we have juries.

THE COURT:        That's right. You would have lost a long time
    ago with me.

[134]

Significantly,
    rather than object to the trial judges comment, defence counsel signaled that
    he could appreciate why the trial judge might be having trouble with the
    hypothetical:

MR. POSNER: You haven't heard their evidence, m'lord. You
    haven't heard the evidence. You haven't heard the evidence. But I hear what
    you're saying. I understand why you're saying that.

[135]

The trial
    judges comment and defence counsels reply were somewhat flippant. But the
    trial judge had not closed his mind to the defences position. He just had not
    heard anything to support it. Indeed, defence counsels last comment shows that
    he understood the trial judge was having trouble with his position and why.

[136]

The submissions
    on the
Scopelliti
application continued and counsel for Vivian argued
    that the proposed evidence would show the men in the Honda wanted to hunt down
    the appellants. His argument led to the last challenged comment of the trial
    judge:

THE COURT: There's a hunting down on the road, there's no
    doubt. The question is, were your people the hunters or were you the huntee?
    That's the big issue, factual issue for the jury, and I'm not going to tell
    them what my opinion is, but I do have an opinion, obviously.

[137]

The appellants
    contend this comment shows the trial judge had already concluded, before the
    defence had called any evidence, that the appellants had hunted down the men in
    the Honda. The comment was unwise. But I take it as no more than reflecting the
    trial judges skepticism of the defences theory. His skepticism was justified.
    When Grant opened fire, the Mercedes was pursuing the Honda. This scenario
    seemed to undermine the defences argument.

[138]

I conclude that neither
    of the trial judges comments during the
Scopelliti
application meets
    the test for bias. In both cases the trial judge expressed his tentative view,
    perhaps in stronger language than he should have, of the appellants position.
    But he had not closed his mind to their position. That he had not done so is
    evident from his later consideration of the defences submissions.

[139]

In the absence
    of the jury, before Vivian was cross-examined, the trial judge stated in
    neutral terms the issues he had to decide:

THE COURT:        The two issues  the two issues I think have
    to be whether or not theres an air of reality to self-defence, the threat of
    force here in the circumstances. And then the other thing is the same gesture
    or conduct, whether or not that gives rise to an air of reality in relation to
    a reasonable person within the provocation defence. Thats all.

[140]

Then the trial
    judge carefully considered the appellants submissions that those two defences
    should be left with the jury. He gave the appellants a full opportunity to make
    their submissions. Only after they had done so did the trial judge rule. The
    record of these submissions shows that the trial judge had not pre-judged or
    closed his mind to the defences position. On the contrary, he was actively
    engaged in considering the defences arguments.

[141]

I would not give
    effect to this ground of appeal.

(7)

Did the trial judge adequately caution the jury on Paddys preliminary
    inquiry evidence?

[142]

Paddy testified
    at the preliminary inquiry. Only Grant and his counsel were present, as Vivian
    remained a fugitive in Jamaica. Paddy then died before the appellants first
    trial. His preliminary inquiry evidence was read in without objection from defence
    counsel.

[143]

At the
    appellants second trial, the Crown again sought to tender Paddys preliminary
    inquiry evidence. This time, Vivian objected to its admission. He contended
    that the evidence had little probative value and was highly prejudicial because
    he had no opportunity to cross-examine Paddy. The trial judge dismissed the objection.
    He held that the evidence was both necessary and reliable, and therefore
    admissible under the principled exception to the hearsay rule. The evidence was
    again read into the record. The trial judge, however, cautioned the jury that
    in considering Paddys evidence they were disadvantaged because of their
    inability to assess Paddys demeanour when he testified at the preliminary
    inquiry.

[144]

On appeal,
    Vivian abandons his challenge to the admissibility of the evidence. He concedes
    that the trial judges ruling was discretionary and entitled to deference in
    this court. Instead, Vivian challenges the adequacy of the trial judges
    caution. He submits that the caution was inadequate because the trial judge did
    not tell the jury they were also disadvantaged because of the absence of
    cross-examination by Vivians counsel.

[145]

I suspect the
    lack of cross-examination from Vivians counsel would have been obvious to the
    jury. But even if the trial judge ought to have reminded the jury that Paddy
    had not been cross-examined by Vivians counsel, I would not give effect to
    Vivians submission. In my opinion, the trial judges caution was adequate.

[146]

The adequacy of
    the trial judges caution should be assessed in the light of the significance
    of Paddys evidence, the context in which it was given, and the likely impact
    of the absence of cross-examination.

[147]

Paddy testified
    that the men in the Honda were ambushed by the appellants, driving in the Mercedes.
    His evidence thus supported the Crowns theory that Vivian pulled the Mercedes
    even with the Honda so Grant could open fire, and contradicted Vivians own
    evidence. But Paddys evidence was not crucial evidence. Three of the other
    occupants of the Honda testified at trial and were vigorously cross-examined.

[148]

The context for
    Paddys evidence is also important. He gave his evidence in a courtroom, under
    affirmation, and was subject to cross-examination by Grants counsel. He did
    not refuse to testify; he died before the trial. And Vivians unavailability to
    cross-examine was his own doing. Vivian fled to Jamaica three days after the
    shooting. He knew by July 2007 that he was wanted by the Toronto Police. He
    knew by August 2007 that Grant had been arrested in Jamaica. Yet Vivian
    remained a fugitive for over 20 months, and so was not present in August 2008
    when Paddy testified at the preliminary inquiry.

[149]

Finally, most
    important, Vivians inability to cross-examine Paddy would have had no impact
    on the jurys ability to assess his evidence for two reasons. First, Paddy was
    cross-examined by Grant, and Grant and Vivian had consistent defences. Second,
    the main issue at the first trial was identity. Who ambushed whom was not a live
    issue. Even if Vivian had been present at the preliminary inquiry, he likely
    would not have cross-examined on the issue to which the appellants now attach significance.

[150]

The trial
    judges caution was adequate. I would not give effect to this ground of appeal.

(8)

Did the trial judge err by refusing to admit evidence about the gang affiliations
    of some of the men in the Honda?

[151]

The appellants
    applied to lead three categories of gang evidence:

·

Evidence that several of the young men in the Honda were associated
    with the Jamestown Crips, a criminal organization known for drug dealing and
    gun violence;

·

The evidence of Detective Bacchus, a police gang expert, that the
    Jamestown Crips had a history of using violence against rival drug dealers who
    ventured into their territory, and that Dr. Fleas was on the edge of their
    territory;

·

Evidence that Saez had a propensity for violence toward perceived
    rivals who entered Jamestown Crips territory and had previously violently
    attacked at least one person.

[152]

The appellants argue
    that this proposed evidence was relevant for two related reasons: it gave some
    credence to their theory that the men in the Honda were the aggressors; and it
    undermined the credibility of the men in the Honda who testified for the Crown
    and said they were not the aggressors. In a brief ruling the trial judge
    dismissed the appellants application:

I find that the evidence of gang membership by Messrs. Akwaboah
    and Saez is, at best, marginally relevant to the defence of self-defence. This
    finding also applies to Mr. Saez's two prior incidents of violent conduct. In
    the end, I am satisfied that the potential prejudice of this propensity
    evidence to the conduct of a fair trial substantially outweighs its probative
    value. The jury already knows that the so-called victims in this case were not
    law-abiding citizens but bad persons.

[153]

The appellants
    submit that the trial judges ruling reflects two errors. First, the law
    favours the admission of evidence, even if it is marginally relevant, and the
    relevance of this evidence was far more than marginal. Second, the trial judge
    failed to explain how the potential prejudice of the proposed evidence could
    affect trial fairness or outweigh its probative value. As the trial judge
    acknowledged, the jury knew these men were bad people and would unlikely be
    inflamed by the proposed evidence. Further, any possible prejudice could have
    been addressed by a proper caution from the trial judge.

[154]

The trial judge
    did not err by dismissing the defences application. His ruling reasonably
    balanced the probative value and prejudicial impact of the evidence. He was
    right that the evidence had at best marginal relevance. In my view, its
    probative value is dubious. There was no evidence that either Grant or Vivian
    was associated with a gang. So this was not a case of rival gangs. Indeed,
    several of the men in the Honda were not gang members. Moreover, Detective
    Bacchuss proposed evidence was that Dr. Fleas was outside the Jamestown Crips
    territory. And though the appellants were drug dealers, there was no evidence
    they sold drugs in Crips territory.

[155]

Finally, whether
    evidence of Saezs propensity for violence was even admissible was
    questionable. The appellants sought to introduce this evidence under the
    principle in
Scopelliti
.
In
Scopelliti
, at pp. 535-36, this court said that when self-defence is an
    issue and the accused seeks to introduce evidence of previous acts of violence
    by the deceased unknown to the accused, there must be some other appreciable
    evidence of the deceaseds aggression on the occasion in question. Here,
    although Saez had acted aggressively in the market, and had taunted the
    appellants by flashing Vivians pendant, he was not an aggressor when Grant
    opened fire. Then, only Omar had flashed a gun.

[156]

Against its
    dubious relevance, the potential prejudice of this evidence was high. Gang
    evidence in particular is likely to be highly prejudicial. Doherty J.A.
    summarized the risk of admitting this kind of evidence in
R. v. Varga
(2001)
, 159 C.C.C. (3d) 502 (Ont. C.A.),
    at para. 71: Attacks on the character of the deceased are often easy to make
    and risk the conclusion that it is a defence to a murder charge to show that
    the deceaseds demise was a civic improvement. Even in
Scopelliti
,
    Martin J.A. cautioned that unless there is evidence of the deceaseds
    aggression at the time of the incident, the deceaseds bad character may be
    put forward improperly as a mere excuse for the killing under the pretext of
    evidencing his aggression.

[157]

I would not
    interfere with the trial judges discretionary ruling that the defence could
    not lead this gang evidence.

[158]

For these
    reasons I would dismiss the conviction appeals.

D.

The sentence appeals

(1)

Introduction

[159]

On their
    convictions for second degree murder, each appellant was sentenced to the
    mandatory life sentence. Under the
Criminal Code
, the minimum period
    of parole ineligibility for second degree murder is ten years. The trial judge
    sentenced Vivian to a period of parole ineligibility of 13 years and sentenced
    Grant to a period of parole ineligibility of 18 years.

[160]

On Grants
    convictions for four counts of attempted murder, the trial judge imposed a life
    sentence.

[161]

On Vivians
    convictions for four counts of aggravated assault, the trial judge imposed a
    sentence of 14 years less appropriate credit for pre-trial custody.

[162]

The appellants
    appeal each of their sentences. Of course, when sentencing an individual
    offender, trial judges have a broad discretion and the exercise of that
    discretion is entitled to deference on appeal. An appellate court is justified
    in interfering with the sentence only if the trial judge imposed a sentence
    that is demonstrably unfit or committed an error in law or principle that had
    an impact on the sentence. An error in principle includes the failure to
    consider a relevant factor or the erroneous consideration of an aggravating or
    mitigating factor:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089,
    at paras. 11, 44-46.

[163]

Here, in
    sentencing the appellants, the trial judge committed two errors in principle justifying
    the intervention of this court.

[164]

First, in every
    sentence he imposed, except for the period of parole ineligibility for Vivian,
    the trial judge exceeded the Crowns position. A trial judge is entitled to go
    beyond the Crowns position if the sentence imposed is still reasonable. But a
    long line of authority in this court has held that when a trial judge proposes
    to do so, the trial judge should alert the parties and give them an opportunity
    to make further submissions. And ideally, if the trial judge still does impose
    a sentence in excess of a Crowns position, the trial judge should explain the
    reason for doing so.

[165]

Here, the trial
    judge did neither. He did not give the parties a chance to make further
    submissions and gave no reasons for going beyond the Crowns position. His
    failure to do so amounts to an error in principle and entitles this court to
    reassess the appellants sentences:
R. v. Hagen
, 2011 ONCA 749, at
    para. 5;
R. v. Menary
, 2012 ONCA 706, 298 O.A.C. 108, at para. 3;
R.
    v. Ibrahim
, 2011 ONCA 611.

[166]

Second, the
    trial judge failed to give any real weight to a highly relevant consideration,
    the appellants relative youth, and failed to give any weight to several other
    mitigating considerations for each appellant.

[167]

The first error
    had an impact on the fairness of the sentencing proceedings; the second error
    had an impact on the fitness of the sentences themselves. In my view, the
    sentences imposed by the trial judge were excessive. I would allow each
    sentence appeal and impose sentences as follows:

·

Period of parole ineligibility for Grant: 14 years.

·

Period of parole ineligibility for Vivian: 11 years.

·

Sentence on Grants convictions for attempted murder: 13 years.

·

Sentence on Vivians convictions for aggravated assault: 10 years.

(2)

The periods of parole ineligibility

[168]

On a conviction
    for second degree murder, a trial judge may impose a period of parole
    ineligibility of between 10 and 25 years. When fixing the period, the
Criminal
    Code
directs a trial judge to take into account the jurys recommendation,
    the nature of the offence and the circumstances surrounding its commission, and
    the character of the offender. A trial judge should also take into account the
    parties positions.

[169]

For Grant, 11
    jurors recommended a parole ineligibility period of 15 years, and one juror
    made no recommendation. Defence counsel recommended a period of 13 years, and
    Crown counsel recommended a period of 17 years. The trial judge exceeded all
    these recommendations and imposed a period of parole ineligibility for Grant of
    18 years. He held that the jurys recommendation was manifestly inadequate.
    He said nothing about the Crowns recommendation.

[170]

For Vivian, 11
    jurors recommended a parole ineligibility period of 10 years and 1 day, and one
    juror made no recommendation. Defence counsel recommended the minimum period,
    10 years, and Crown counsel recommended 15 years. The trial judge imposed a
    period of parole ineligibility for Vivian of 13 years. Again, he found the
    jurys recommendation manifestly inadequate.

[171]

The nature of
    the offences and the circumstances surrounding their commission call for
    periods of parole ineligibility above the minimum, more so for Grant because he
    was the shooter. The trial judge fairly characterized the murder of Saez as
    outrageous, shocking and horrendous and he noted that the use of guns
    remains a scourge to the Toronto community. He described the circumstances
    surrounding the shooting as follows:

·

The accused Grant discharged his deadly firearm 13 times at a
    smaller car and its occupants and hit the car 12 times. Nine of the shots hit
    four occupants in the small car, and one occupant miraculously escaped being
    hit by a bullet.

·

The accused Grant discharged 13 shots on a residential Toronto
    street in the middle of a Saturday afternoon. It was miraculous that the
    accused Grant did not kill any innocent bystanders.

·

The accused Vivian positioned the SUV parallel to the smaller car
    so that the accused Grant could kill Jose Saez and endanger the lives of the
    others in the car.

·

The murder of Jose Saez and the circumstances of its commission
    ranges in the upper scale of 85 to 95 percent of seriousness.

I accept the trial judges description of what
    occurred.

[172]

But apart from
    noting there was some hope of rehabilitation for each accused, the trial
    judge said virtually nothing about the character of each appellant. He
    mentioned each of their ages and near absence of a criminal record but appeared
    to give neither any weight. And he said nothing about the several other
    mitigating considerations for each appellant.

[173]

As I said
    earlier, Grant was only 21 and Vivian was only 20 when they committed this
    offence. Their youth alone argues for a shorter rather than longer period of
    parole ineligibility. Moreover, though both had been trafficking in drugs since
    their mid-teens, neither had a record for any previous offence of serious
    violence. Grant had a record for only a single simple assault, for which he
    received a suspended sentence and probation. Vivian had a record for only a
    previous youth offence, for possession of marijuana for the purpose of
    trafficking.

[174]

Grant can point
    to several other mitigating considerations:

·

He continues to have extensive support from his immediate and
    extended family. His mother, step-mother, father, and cousins have all visited
    him regularly while he has been in custody and they attended the trial.

·

The prison parole authorities have said he has excellent prospects
    for rehabilitation.

·

He has taken every available opportunity to improve himself over
    the course of his six and one-half years in custody, including by returning to
    school and getting excellent grades.

·

He continues to play as active a role as he can in the life of
    his young child.

[175]

Vivian, too, can
    point to several other mitigating considerations:

·

He had a difficult upbringing. From a young age he often had to
    care for his younger siblings, as his mother, a drug addict, was frequently
    absent from the home because of her addiction.

·

Before going to prison, he received good grades at school and
    participated in extracurricular sports activities.

·

Before going to prison, he worked weekends for his step-father,
    who owned a mobile washing company for tractor trailers. The trial judges
    observation that Vivian has never held a job except for trafficking in
    marijuana and crack cocaine was simply wrong.

·

After going to prison, he received strong support from his mother
    and his aunt and her partner. They attended court during the trial and wrote letters
    of support, which were filed during the sentencing proceedings.

[176]

In the light of
    their youth and these other mitigating considerations, I think each appellant
    has a real potential for rehabilitation. Despite the highly aggravating circumstances
    surrounding the murder of Saez, these mitigating considerations warrant
    reducing the periods of parole ineligibility imposed by the trial judge. I
    would sentence Grant to a period of parole ineligibility of 14 years and Vivian
    to a period of parole ineligibility of 11 years. It would then be up to the
    parole board to determine when each appellant should be released.

(3)

The sentence on Grants convictions for attempted murder

[177]

Grant was
    convicted of four counts of attempted murder. His counsel asked for a 10-year
    sentence. The trial Crown asked for a 13-year sentence. Without any explanation
    for his decision, the trial judge far exceeded the Crowns request and imposed
    a life sentence.

[178]

For the same
    reasons I would reduce Grants period of parole ineligibility, I would also
    reduce his sentence for attempted murder. The trial Crowns position was
    reasonable. I would set aside the life sentence and substitute a sentence of 13
    years (less appropriate credit for pre-trial custody).

(4)

The sentence on Vivians convictions for aggravated assault

[179]

Vivian was
    convicted of four counts of aggravated assault. His counsel did not take a
    position on sentence. The trial Crown asked for eight to ten years. Again
    without explanation, the trial judge imposed a sentence of 14 years (less credit
    of 5 years and 10 months pre-trial custody).

[180]

For the same
    reasons I would reduce Vivians period of parole ineligibility, I would reduce
    his sentence for aggravated assault. Here, as well, the trial Crowns position
    was reasonable. I would set aside the sentence of 14 years and impose a
    sentence of 10 years (less appropriate credit for pre-trial custody).

E.

Conclusion

[181]

I would dismiss
    the conviction appeals. I would grant leave to appeal sentence, allow the
    sentence appeals and impose sentences as follows:

·

Period of parole ineligibility for Grant: 14 years.

·

Period of parole ineligibility for Vivian: 11 years.

·

Sentence on Grants convictions for attempted murder: 13 years.

·

Sentence on Vivians convictions for aggravated assault: 10 years.

Released: August 23, 2016 (J.L.)

John Laskin J.A.

I agree. E.A. Cronk J.A.

I agree. R.G. Juriansz J.A.

[1]
It is not a statutory discretion because it is not found in s. 640(2) itself.
    For a related discussion on the inherent jurisdiction of the court to grant a
    limited opportunity for reply, see
R. v. Rose
, [1998] 3 S.C.R. 262, at
    paras. 130-133.