R. v. Rogers

R. v. Rogers Collection Decisions of the Court of Appeal Date 2015-06-08 Neutral citation 2015 ONCA 399 Docket numbers C51859 Judges Strathy, George R.; Tulloch, Michael H.; Hourigan, C. William Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Rogers, 2015 ONCA 399 DATE: 20150608 DOCKET: C51859 Strathy C.J.O., Tulloch and Hourigan JJ.A. BETWEEN Her Majesty the Queen Respondent and Corey Rogers Appellant Delmar Doucette, for the appellant Michael Bernstein, for the respondent Heard: December 1, 2 and 3, 2014 On appeal from the conviction entered on April 3, 2009 by Justice James Ramsay of the Superior Court of Justice, sitting with a jury. Strathy C.J.O.: [1] A night at the Dizzy Weasel pub in Hamilton ended with two men dead from knife wounds, two others in hospital and the appellant charged with first degree murder, second degree murder, attempted murder and aggravated assault. [2] The appellant admitted stabbing the two deceased men, but claimed he acted in self-defence. He also conceded one of the other two surviving victims might have been stabbed while he was defending himself. [3] A jury convicted him of all counts. [4] He appeals, asserting: the conviction for first degree murder was unreasonable; the jury was not properly instructed on the principles in R. v. W.(D.), [1991] 1 S.C.R. 742, after-the-fact conduct and self-defence; a Crown witness was biased; and he should have received the benefit of legislative changes to the law of self-defence. [5] For the reasons that follow, I would dismiss the appeal. A. overview [6] The following overview sets the stage for my discussion of the grounds of appeal. Additional detail is added when I discuss each ground. [7] The appellant, his girlfriend Joana Desousa and his friend Tim Leeming arrived at the Dizzy Weasel shortly after 11:30 p.m. on February 16, 2007. The four victims from the events later that evening – Paul Haggerty, Kenny Clark, Lucas Deane and Lee-Anthony Newell – were already there. [8] The atmosphere between the two groups turned ugly about 20 minutes later when Clark used Leeming’s jacket to wipe up a spilled beer. The appellant confronted Clark and allegedly sucker-punched him in the lip. Haggerty came to Clark’s defence and the dispute moved to the parking lot. [9] The appellant and Clark squared off. Leeming was present, as were Clark’s friends Haggerty, Deane and Newell. Clark punched the appellant in the mouth. The appellant fled and may have been pursued briefly by Clark and some of his friends. [10] The appellant returned to the bar about 17 minutes later. At trial, he claimed he went back to collect his girlfriend and get his jacket, which he had left at the bar. He headed to the parking lot, where he encountered Haggerty and Clark. [11] There was a second confrontation in the parking lot involving the appellant and Leeming on one side and Haggerty and Clark on the other. The appellant stabbed Haggerty twice in the back – once in the shoulder near the neck and the other through the rib cage, cutting into the kidney and slicing the colon. The shoulder wound severed an artery and Haggerty bled to death before paramedics arrived. Clark was also stabbed, but was saved by emergency surgery. The appellant fled. [12] Meanwhile, Deane and Newell were at a nearby restaurant, where they had gone after the initial parking lot altercation. They were just starting their meal when someone, probably the appellant, ran by shouting that their friends had been stabbed. [13] Deane and Newell gave chase. There was evidence that suggested Deane may have grabbed a knife from the restaurant. They caught up with the appellant and Leeming on Gage Avenue. There was another confrontation. Deane struck the appellant. The appellant stabbed Deane repeatedly, a total of six times, including several times in the back. Newell claimed the appellant cut his arm when he tried to intervene. The appellant’s face was cut at some point. [14] The appellant and Leeming ran away. The appellant claimed he threw his knife into a dumpster. Newell tried to carry Deane to a nearby store to call for help. Paramedics arrived, but were unable to save Deane. Police located a steak knife blade on the ground on Gage Avenue, along the route taken by Newell and Deane after the stabbing. Deane’s DNA was on the blade. [15] A forensic pathologist called by the Crown testified that Haggerty’s wounds were “consistent” with being inflicted by the blade. That same witness admitted telling Crown counsel that she hoped the appellant would be convicted. [16] The appellant was arrested the next day. He was charged with the murders of Haggerty and Deane, the attempted murder of Clark, and aggravated assault of Newell. The Crown alleged first degree murder of Haggerty, based on planning and deliberation between leaving the bar after the first fight and returning and engaging in the second fight. [17] The defence argued the blade found on Gage Avenue belonged to one of the victims, supporting the self-defence theory. The trial judge left self-defence (on all counts), the identity of the assailant (on the Clark and Newell counts), intent (on all counts) and provocation (on the murder counts) open to the jury. The jury deliberated for three days, ultimately convicting the appellant of all charges. B. issues [18] The appellant raises the following issues: (a) Unreasonable verdict of first degree murder: the conviction of first degree murder was unreasonable because there was no evidence of planning and deliberation; (b) After-the-fact conduct: the trial judge erred in instructing the jury they could consider after-the-fact conduct evidence to determine the appellant’s degree of culpability; (c) Expert bias: a Crown expert was biased and a new trial should be ordered to admit fresh expert evidence on whether the blade recovered by police was the one used by the appellant; (d) W.(D.): the trial judge erred in failing to instruct the jury to apply the principles from W.(D.) when considering self-defence, provocation, and planning and deliberation; and (e) Self-defence: the trial judge erred in refusing to leave s. 34(1) self-defence with the jury; and the appellant should be entitled to the benefit of the new self-defence provision of the Criminal Code, R.S.C. 1985, c. C-46 that came into force after his trial. C. discussion (a) Unreasonable verdict of first degree murder [19] The appellant says his conviction for first degree murder of Haggerty was unreasonable. Relying on the decision of this court in R. v. Phung, 2012 ONCA 720, at para. 43, he says the theory of planning and deliberation was speculative and unsupported by the evidence. Crown counsel invited the jury to find that he acquired the knife between the first and second parking lot incidents, but the Crown could not prove where or how he got it. This theory reversed the burden of proof by requiring him to prove he had the knife when he first came to the bar that evening. [20] To establish an unreasonable verdict under s. 686(1)(a)(i) of the Code, the appellant must persuade us that no properly instructed jury, acting judicially, could reasonably have found him guilty of first degree murder: R. v. Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514, at para. 2; R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9. [21] The Crown theory was that the appellant was angry when he left the Dizzy Weasel after the first fight. He was angry because he got punched in the face and lost the fight – a fight in which Haggerty, Newell and Deane stood around cheering for Clark. He was angry because of the incident with Leeming’s jacket. And he was angry because he had seen Newell exchange a passionate kiss with his girlfriend Desousa a week earlier. [22] The Crown contended that in the 17 minutes between leaving the parking lot and returning, the appellant formulated a plan to stab and kill the four men. After unsuccessfully attempting to call and recruit two friends to assist him, he armed himself with a knife and returned to the pub where he stabbed Haggerty and Clark. [23] The Crown acknowledged it could not prove where he got the knife, but said it was reasonable to infer he got one during this period. No one saw a knife while he was at the bar earlier in the evening. Leeming, who was with him at his home before he went to the bar, did not see him get the knife. [24] The appellant testified he had the knife when he arrived at the bar at 11:30 p.m. His story, which was challenged in cross-examination, was not free from difficulties. He claimed he brought the knife for protection, but had not brought it to the Dizzy Weasel on his previous four or five visits. In spite of wanting it for protection, he said he left it sitting in his jacket on the seat in the bar when he went outside to fight with Clark after the beer spilling incident. He claimed it was a large knife, at least 12 inches long, but a knife that size would have been visible sticking out of his jacket pocket. He claimed he returned to the bar after running away the first time in order to retrieve his jacket, but Desousa said he was wearing his jacket when he ran away. [25] The confrontation over the spilled beer, the appellant sucker punching Clark, the first fight in the parking lot, the anger over the kiss, the flight from the parking lot and the return to the bar could all support a finding of animus. The 17 minutes between leaving and returning and the phone calls to friends to recruit their assistance would support a conclusion of planning and deliberation. [26] There was therefore ample evidence to demonstrate both animus and planning and deliberation. There was also circumstantial evidence from which the jury could have found the appellant obtained the knife before he returned to the bar. The Crown was not required to show when or how he obtained it. [27] I would therefore reject this ground of appeal. (b) After-the fact conduct [28] The appellant submits the trial judge’s instructions on the Haggerty, Deane and Clark counts were flawed because he told the jury they could consider whether his after-the-fact conduct was “consistent with the actions of a person who has committed the offence charged” (emphasis added). This was an error, he says, because the conduct was equally consistent with lesser levels of culpability. [29] He submits this general instruction invited the jury to use his conduct to determine his degree of culpability on those counts, when it was only relevant to whether he had acted in self-defence: R. v. White, [1998] 2 S.C.R. 72, at para. 32; R. v. Fraser (2001), 56 O.R. (3d) 161 (C.A.), at paras. 17-18, leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 11. It was not probative of his degree of culpability: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. McIntyre, 2012 ONCA 356, 291 O.A.C. 359, at paras. 41-46; R. v. Palmer, 2010 ONCA 804, at paras. 12-13, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 361. [30] There were three particular acts referred to by the trial judge in his instructions: (a) Leeming testified the appellant threatened him with death if he “snitched”. The appellant denied this. (b) The appellant admitted he phoned Desousa, and told her not to “name names”. (c) The appellant admitted having thrown his knife into a dumpster after stabbing Haggerty and Deane. [31] The trial judge told the jury that if they found these events happened, they could use them as pieces of circumstantial evidence if they considered them more consistent with the acts of a person “who has committed the offence charged.” [32] He added, however, that before they used any of this evidence, they must consider “whether there is any explanation for the act that is also consistent with innocence.” [33] Immediately after that, he instructed them, “as a matter of law”, that this evidence only went to whether the appellant acted with justification – i.e. in self-defence. He then said, “[y]ou cannot use it in deciding the question of intent, provocation, and whether he stabbed a particular person or in what manner.” He pointed out that the conduct might relate to one stabbing incident and not to the other. [34] The appellant says these instructions were undermined by the trial judge’s subsequent specific instructions. For example, a few minutes later, in instructing the jury on the requisite state of mind on the Haggerty murder count, he gave the following instruction: To determine Mr. Rogers’ state of mind, what he meant to do, you should consider all the evidence. You should consider what he did or did not do, how he did or did not do it and what he said or did not say. You should look at Corey Rogers’ words and conduct, before, at the time and after the stabbing. All these things, and the circumstances in which they happened may shed light on Corey Rogers’ state of mind at the time. They may help you decide what he meant or didn’t mean to do. In considering all the evidence, use your common sense. [Emphasis added.] [35] This, the appellant says, had the effect of telling the jury they could consider after-the-fact conduct to determine his degree of culpability. [36] However, this instruction was followed by a review of the evidence that had a bearing on the appellant’s state of mind. There was no mention of any after-the-fact conduct. [37] Similar instructions were given on the Deane and Clark counts. Again, these instructions were followed by a review of some of the evidence bearing on state of mind. Again, there was no reference to after-the-fact conduct. [38] In my view, reading the impugned instructions in the context of the charge as a whole, there was no reasonable possibility the jury would have misunderstood the permissible use of after-fact-conduct. The judge’s instruction was simple and clear – the jury could only use the evidence to determine whether he had acted in self-defence. The instructions on state of mind made no reference to the use of after-the-fact conduct to determine the appellant’s level of culpability. [39] In R. v. Tuck, 2014 ONCA 918, at paras. 44-46, this court concluded there was no reversible error when the trial judge instructed the jury in a similar fashion. [40] At its highest, this is a case like R. v. Arroyo, [2005] O.J. No. 1092 (C.A.), where this court said, at paras. 16-18, that while it might have been preferable for the trial judge to have omitted the words “after the stabbing” from his specific instruction, its inclusion resulted in no substantial wrong or miscarriage of justice. [41] In assessing the risk the jury might have misunderstood the instruction, it is significant that the appellant’s trial counsel, Mr. Rosen, who listened to the charge as it was being given, made no objection and stated for the record he did not perceive any error of law in the instructions. [42] I would therefore dismiss this ground of appeal. (c) Expert bias [43] The appellant filed a supplementary factum asserting the Crown’s forensic pathologist, Dr. Chitra Rao, was biased. He claims: (a) Dr. Rao displayed bias when she acknowledged the wounds suffered by the two deceased victims were “consistent” with having been caused by the blade found on Gage Avenue; (b) she exhibited bias by testifying that the blade could have broken off in Deane’s shoulder wound and could have been carried a distance before falling out; (c) Crown counsel’s closing address made inappropriate reference to this biased evidence; (d) the Crown relied on impermissible oath-helping in relation to Dr. Rao’s evidence; and (e) the trial judge failed to properly charge the jury on the effect of Dr. Rao’s bias on their assessment of her evidence. [44] The appellant brought an application to admit fresh evidence in support of this ground of appeal – the evidence of a British forensic pathologist, Dr. Christopher P. Johnson, who reviewed Dr. Rao’s evidence at the request of Ontario’s Chief Forensic Pathologist, in response to a request by appellant’s counsel. [45] One issue for the jury’s consideration was whether the blade recovered by police on Gage Avenue came from the appellant’s knife (as the Crown contended) or whether it came from a knife carried by either Deane or Newell (as the defence claimed). If the jury accepted the appellant’s evidence that he had thrown his knife in a dumpster while running away after the last stabbing, the blade found on the street supported his claim of self-defence. If, on the other hand, the jury was satisfied the blade came from the appellant’s knife, it undermined his claim of self-defence and his credibility. [46] The issue of bias came up in the following context. [47] During a break in Dr. Rao’s examination-in-chief, she told Crown counsel she hoped the appellant would be convicted. Crown counsel immediately disclosed this statement to defence counsel. At the commencement of Dr. Rao’s cross-examination, defence counsel brought the statement to Dr. Rao’s attention. She reluctantly admitted it and apologized. She agreed with defence counsel’s suggestion that it “may be something for the jury to consider when they consider the weight of your evidence”. [48] Dr. Rao accepted many of the suggestions put to her by defence counsel in cross-examination, including: · a bruise on Haggerty’s chest discovered on the autopsy could have been caused by the victim being hit on the chest by the blunt handle of a substantial knife; and · the stab wound on Haggerty’s left shoulder could have been made by someone facing him and could have been the first knife blow administered. [49] These admissions were supportive of self-defence and lack of intent. They were emphasized in defence counsel’s closing. He submitted to the jury, based on Dr. Rao’s evidence, that the appellant’s response to Haggerty’s attack was to “punch the guy in the chest to get him to back off” and when that did not succeed, he stabbed him in the front right shoulder, not appreciating it might cause grievous bodily harm by slicing a branch of the aorta. [50] In his closing, defence counsel made a brief reference to Dr. Rao’s bias. The trial judge made no reference to it, nor was he asked to do so. [51] With this additional background, I turn to the appellant’s complaints in relation to Dr. Rao. Use of the expression “consistent with” [52] The appellant submits Dr. Rao displayed bias when she agreed the stab wound suffered by Deane was “consistent with” being caused by the serrated or “scalloped” steak knife blade found on Gage Avenue. She responded to the Crown’s questions as follows: Q. All right. And from your examination of the wounds on Lucas Deane and your findings with respect to some scalloping within the wounds that you discovered, is this knife blade … could this knife blade have caused the stab wounds to Mr. Deane? A. Could have, yes, or similar to this knife. Q. All right. In terms of the scalloping pattern of the single-edged knife that we see here, is it – can you comment on whether the stab wounds, the very stab wounds that you gave evidence about upon Mr. Deane, whether this knife is consistent with having caused those injuries? [Emphasis added.] A. Yes. [53] When asked whether the wounds to Haggerty were “consistent with” the use of the steak knife, she responded “[y]es… or a knife of a similar nature.” Dr. Rao later added it was “possible” the same knife, “or another weapon of similar characteristics”, could have been used to cause the wounds to both Deane and Haggerty. [54] The appellant says the use of the phrase “consistent with” was improper and misleading, and Dr. Rao, an experienced pathologist, should not have adopted the phrase when the question was put to her by Crown counsel. He notes that recent public inquiries have emphasized the misleading nature of the expression “consistent with”. It simply means “not inconsistent with”, but its use is fraught with danger because the jury may attribute a more compelling logic to it: see Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin (Toronto: Ontario Ministry of the Attorney General, 2008), vol. 1, c. 2, pp. 338-344; and Report of the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen’s Printer for Ontario, 2008), vol. 3, c. 16, at pp. 433-435 [The Goudge Report]. In addition, the appellant relies on R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at paras. 63-64, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 125, where this court emphasized that a trial judge must control both the scope and the language of expert opinion evidence. [55] I would not give effect to this submission. The trial judge and defence counsel never took issue with Crown counsel’s use of the expression “consistent with”. In these circumstances, I am not persuaded Dr. Rao was obliged to tell Crown counsel the terminology was improper. In my view, her failure to do so was not evidence of bias, particularly when considered in context of her answers that the wounds could have been caused by that knife or by a knife of a similar nature. The trial judge reinforced the meaning of this evidence by instructing the jury that Dr. Rao, “cannot and did not tell us whether [the recovered knife] caused the wounds, only that it could have (emphasis added).” Taken in context, there is no reasonable possibility the jury could have been misled by the use of the term. Re-examination on how the blade broke [56] The appellant asserts a more serious error arising from Dr. Rao’s bias regarding her acceptance of the Crown’s suggestion that the blade could have broken off during the “through and through” flesh wound to Deane’s shoulder. This supported the Crown’s position that the blade belonged to the appellant and detracted from the appellant’s position that Newell also had a knife. It also detracted from the appellant’s credibility. [57] In re-examination, Dr. Rao was asked whether it was possible that the knife blade could have broken in the wound and subsequently fallen out. She described it as a “possibility”. The exact exchange was as follows: Q. And is it possible that a superficial wound like on the through and through shoulder blade which we saw some, which you gave some evidence about movement, that the size of that wound could have – or drop a blade from given the superficial nature of that wound – if a knife blade broke in that wound as opposed to being plunged and broken off into the body cavity, would your opinion change with respect to that type of a superficial wound and whether or not the knife blade could fall out? A. Yes, that’s a possibility, yes. [58] The appellant says the premise of the question was flawed because the blade could not have broken off in a flesh wound. Dr. Rao’s failure to challenge this premise reflected her bias. [59] The appellant relies upon the proposed fresh evidence of Dr. Johnson, who deposed that it is uncommon for a knife blade to break from a handle in a stabbing and it would most commonly occur when the knife is of poor quality and hits bone. He added, however: There are clearly a number of possibilities for how a knife blade could become separated from a handle during a stabbing incident such as this. The blade could become loosened by the action of the knife, passing one or more times through clothing (particularly if this was thick) and tissues, causing the blade to break from the handle whilst it is fully within a wound or else partly, or almost completely, out of a stab track. The knife could obviously also become separated from the handle whilst being held out of the body by the assailant. [60] He said that in the absence of bony injury in the wounds, it was not possible from any of the pathological findings to identify a wound where the blade was more likely to become loosened or detached. He agreed with Dr. Rao that the blade could have fallen out if it became detached in the shoulder wound. [61] In my view, Dr. Johnson’s evidence does not establish that Dr. Rao’s evidence on this point was in any way flawed, let alone that it was tainted by bias. Crown Closing [62] The appellant says the Crown improperly relied on Dr. Rao’s evidence in cross-examining the appellant and in closing, when the Crown submitted that the knife blade broke off when the appellant stabbed Deane in the shoulder. I disagree. The appellant admitted stabbing Deane. Deane’s DNA was found on the blade. The blade was found near the location of Deane’s stabbing. Dr. Rao provided an explanation of how the blade of a steak knife could have broken in the course of administering the final wound and how it could have fallen out of that wound. Dr. Johnson’s evidence is not inconsistent with that possibility. I would therefore reject this submission. Oath-helping [63] Early in her evidence, Dr. Rao confirmed her pathology reports had been “peer reviewed” by the Chief Coroner. Crown counsel referred to this in her closing. The appellant says this was impermissible oath-helping, referring to the general principles expressed in R. v. Llorenz (2000), 145 C.C.C. (3d) 535 (Ont. C.A.), at paras. 27-29. [64] There was no objection made by the defence to either reference. The presence or absence of peer review is frequently considered in assessing the reliability of expert evidence: see Abbey and R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at paras. 39-40. In my view, taken in context, the statement was innocuous. The Jury Charge [65] For these reasons, in the absence of any request by the defence at trial, in my view the trial judge had no obligation to comment in his charge on Dr. Rao’s bias. Given the appellant’s reliance on Dr. Rao’s evidence at trial, it may not have been in his interest to request an instruction on this issue. Fresh Evidence [66] On the fresh evidence application, the appellant filed two reports of Dr. Johnson as well as a transcript of his cross-examination. He made no substantive submissions as to whether the admission of fresh evidence is “in the interests of justice” pursuant to s. 683(1) of the Code and whether it meets the test for admissibility on appeal set out in R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775: (a) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial [although this principle will not be applied as strictly in criminal cases]. (b) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (c) The evidence must be credible in the sense that it is reasonably capable of belief, and (d) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [67] In my view, the application flounders on the last factor, the cogency test. There is no reasonable likelihood that the proposed fresh evidence would meet the cogency test or would have affected the outcome of the trial. Dr. Johnson agreed with the majority of the opinions expressed by Dr. Rao. In his covering letter, he said, “I can see no major issues at all with the pathology or the evidence given by Dr. Rao. There are a few points on which I would offer somewhat differing opinion which is not unexpected in any expert review of this type of material.” [68] I would therefore dismiss this ground of appeal. (d) W.(D.) [69] The trial judge gave a standard W.(D.) instruction early in his charge, linking it to the presumption of innocence and the burden of proof. [70] The appellant says the instruction should have been tailored to the issues in this case. The appellant did not deny he killed Haggerty and Deane. However, whether he acted in self-defence on all the counts and whether there was provocation on the Haggerty and Deane counts were live issues. The judge failed to link the W.(D.) principles to the Crown’s burden of disproving the conditions of those defences. Instead of telling the jury they were required to consider whether the appellant’s evidence raised a reasonable doubt on these defences, it was turned into a credibility contest. [71] In R. v. Parrington (1993), 20 C.C.C. (3d) 184 (Ont. C.A.), Cory J.A. noted the need to relate the principle of reasonable doubt to the evidence adduced – in that case, alibi evidence. He proposed the instruction later set out in W.(D.) as being applicable to any case where credibility is important. [72] The appellant relies on R. v. Reid (2003), 65 O.R. (3d) 723 (C.A.) in support of his submission that the instructions on self-defence and provocation should have incorporated a W.(D.) instruction. In Reid, where self-defence was advanced, the trial judge had instructed the jury that they “may” acquit the accused if they accepted the accused’s evidence, or if it raised a reasonable doubt. Moldaver J.A., speaking for this court, held that it would have been preferable to instruct the jury on the circumstances in which they must acquit, if they believed or had a reasonable doubt that the accused had acted in self-defence. He continued, at para. 72: [S]uch an approach would avoid the possibility of the jury being misled into thinking that they retained an overriding discretion to convict even though they otherwise believed or had a reasonable doubt that the appellant was acting in lawful self-defence at the time of the killing. To guard against that possibility, I would suggest that in future cases, when the defence of self-defence is raised and the trial judge believes that a W.(D.) instruction is warranted, the jury should be instructed along these lines with respect to the first two principles: 1. If you accept the accused's evidence and on the basis of it, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty. 2. Even if you do not accept the accused's evidence, if, after considering it alone or in conjunction with the other evidence, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty. [73] In that case, however, Moldaver J.A. found the jury would not have been misled when the instructions were considered in context (at para. 73): As indicated, the W.(D.) instruction given by the trial judge was potentially confusing. However, when it is considered in the context of the charge as a whole, I am satisfied that the jury would not have been misled into thinking that they could convict even though they otherwise believed or had a reasonable doubt that the appellant was acting in lawful self-defence at the time of the killing. Accordingly, I would not give effect to this ground of appeal. [74] The W.(D.) instruction is intended to ensure the jury understands the application of the principle of reasonable doubt to issues in which credibility is a factor. It makes it clear that it is not a matter of choosing between the evidence of the Crown on the one hand and of the accused on the other. There is the “third alternative” referred to in W.(D.), namely, even if they do not believe the accused’s evidence, and are not left in reasonable doubt by it, they must consider whether, on the basis of the evidence which they do accept, they are convinced beyond a reasonable doubt of the accused’s guilt. [75] In W.(D.) itself, however, Cory J.A. noted, at p. 758, “the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply”. Moldaver J.A. came to the same result in Reid. [76] I agree with the respondent that the instruction in Reid is not mandatory. The failure to give it is not, on its own, reversible error. It must be considered in the context of the charge as a whole, including the positions taken by the Crown and defence. In R. v. Bengy, (C57571), released with this decision, we come to a similar conclusion. [77] This is a case, like Reid itself, where the trial judge brought home to the jury that they were bound to acquit if they believed or had a reasonable doubt the appellant was acting in self-defence. He told them the Crown had the burden of disproving self-defence and the appellant was entitled to the benefit of that defence if they could not say, beyond a reasonable doubt, that one of the conditions for self-defence did not exist. He later told them, “[o]n this issue, the burden is on the Crown to disprove at least one of the required conditions beyond a reasonable doubt. If the Crown has not met its burden, you must acquit the accused.” [78] He instructed them in the same manner with respect to provocation. [79] The failure of defence counsel to object, or to raise the issue, is telling in the context of a discretionary instruction. Here, experienced defence counsel made no such complaint. [80] I would not give effect to this ground. (e) Self-defence Refusal to leave the old s. 34(1) with the jury [81] The appellant submits the trial judge erred in only instructing the jury on self-defence under s. 34(2) and not under s. 34(1). The latter provided: Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. [82] At trial, the appellant conceded instructions on ss. 35 and 37 of the Code were unnecessary, but argued both s. 34(1) and (2) ought to be left with the jury. The Crown, relying on R. v. Pintar (1996), 30 O.R. (3d) 483 (C.A.), argued he should leave only s. 34(2). [83] After hearing from the Crown, the trial judge pressed defence counsel, as Pintar suggests he should, to identify a scenario in which the appellant could have a defence under the narrower s. 34(1) that he would not have under s. 34(2). [84] Defence counsel referred to an annotation in the Code (citing Pintar), which indicated on this issue: [W]here a particular provision affords the accused a wider scope of justification than a companion provision, the narrow provision should only be put to the jury if the evidence lends an air of reality to the factual underpinning of that provision and the provision somehow fills a gap unaccounted for in the justification afforded on the wider provision. [85] He conceded that s. 34(2) was the “wider provision”. The discussion then turned to whether there was an air of reality to self-defence under s. 34(2), which required that the force used is “not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.” The following discussion ensued: THE COURT: … But grievous bodily harm, well, that’s just really serious bodily harm, right? MR. ROSEN: Yeah, that’s really serious bodily harm. And then, of course, then the fourth [requirement] is no more than necessary to defend himself. So you may be very well be right, that on the grievous bodily harm side, that if he’s using a knife to stab somebody repeatedly, that … THE COURT: He must intend at least that much. MR. ROSEN: At least that much. In which case there would be no air of reality. I don’t want to concede that point for purposes of the record, but you may very well be right. [86] In the end, the trial judge charged the jury only on s. 34(1). [87] In Pintar, this court expressed a concern about “over-charging” a jury on unnecessary, inappropriate and confusing provisions and emphasized the need for a functional approach to the instruction on self-defence. Moldaver J.A. stated, at p. 494: It [R. v. Hebert, [1996] 2 S.C.R. 272] invites trial judges to take a hard look at the evidence with a view to determining the essence of the claim to self-defence and the Code provision(s) realistically available to that claim. It advocates a careful and considered culling of the self-defence provisions to avoid unnecessary, inappropriate and irrelevant legal instruction of a kind that might well divert the jury's attention from the real basis upon which the claim to self-defence rests. [88] He continued, at p. 496: To give effect to the functional approach, I would urge trial judges to consider the following guidelines when faced with the prospect of charging a jury on the law of self-defence: (1) Consider the evidence carefully with a view to determining the essence of the claim to self-defence and the Code provision(s) realistically available to that claim. (2) To the extent that the evidence fails the air of reality test in respect of one or more of the constituent elements of a particular provision, that provision should not be left with the jury. (3) To the extent that the evidence clearly establishes one or more of the constituent elements of a particular provision, Crown counsel should be encouraged to admit the underlying facts and thereby avoid unnecessary legal instruction. (4) Where a particular provision affords the accused a wider scope of justification than a companion provision, the narrower provision should only be put to the jury if the evidence lends an air of reality to the factual underpinnings of that provision, and the provision somehow fills a gap unaccounted for in the justification afforded by the wider provision. And, at p. 497, he made the suggestion followed by the trial judge in this case: For my part, I am of the view that when trial judges are faced with situations like this, they should call upon counsel to justify instruction on the narrower provision. If the results of that exercise reveal either the lack of an evidentiary base for putting the narrower provision, or an inability to demonstrate how the narrower provision might be available to fill a gap not provided for by the broader one, the narrower provision should be discarded. Once again, let me be clear that the underlying purpose of this exercise is not to remove self-defence from the jury's consideration. Rather it is designed to focus the jury's attention on the essence of the claim to self-defence and the available Code provision(s) most relevant to it. [89] The appellant submits there was an air of reality to s. 34(1) because whether the appellant intended to cause death or grievous bodily harm was a live issue on all counts. On the appellant’s version, his first act in the parking lot incident was a defensive punch to Haggerty’s chest using the blunt handle of the knife. When this did not deter him, the appellant stabbed him in the shoulder – a location he could not have realized would be fatal. With respect to the incident on Gage Avenue, the appellant argued he was simply flailing his knife in an attempt to defend himself against Deane and did not deliver any targeted stabs intended to cause grievous harm. As a result, he says, s. 34(1) offered a broader defence than s. 34(2) because it did not require a finding the appellant was under an apprehension of death or grievous bodily harm. [90] I would reject this ground of appeal for three reasons. [91] First, there was, as the appellant’s trial counsel all but conceded, no air of reality to self-defence under s. 34(1). Using a knife to repeatedly stab someone in the upper body necessarily demonstrates an intention to cause at least grievous bodily harm, thereby taking the case outside the ambit of s. 34(1). [92] Second, although s. 34(1) was broader than s. 34(2), in that it did not require the accused to be acting under an apprehension of death or grievous bodily harm, the jury would be bound to find the appellant apprehended grievous bodily harm if it found the force he used was no more than what was necessary to defend himself. In other words, if he was not under an apprehension of death or grievous bodily harm, he could not have met the proportionality requirement under s. 34(1) of using no more force than necessary to defend himself. Thus, s. 34(1) could not have offered him a broader defence and charging the jury on it would have been unnecessary and confusing. [93] Third, given the jury’s findings on first degree murder of Haggerty and second degree murder of Deane, they clearly concluded beyond a reasonable doubt the appellant intended to cause death or grievous bodily harm. By necessary implication, they could not have accepted his defence under s. 34(1). [94] I would therefore reject this ground of appeal. Retrospectivity [95] For the reasons given in R. v. Bengy (C57571), I conclude the Citizen’s Arrest and Self-defence Act, S.C. 2012, c. 9 does not apply retrospectively. I would therefore reject the appellant’s contention that, on appeal, he should be granted a new trial based on legislative amendments that came into force nearly four years after he was convicted: see R. v. Heydari, 2014 ONSC 2350, at paras. 20-28. D. disposition [96] For these reasons, I would dismiss the appeal. “G.R. Strathy C.J.O.” “I agree M. Tulloch J.A.” “I agree W. Hourigan J.A.” Released: June 08, 2015