2020 QCCA 484, 2020 QCCA 484

Official English Translation of the Judgment of the Court Deslauriers c. R. 2020 QCCA 484 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006539-173 (700-01-136352-153) DATE: MARCH 26, 2020 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. JACQUES CHAMBERLAND, J.A. MARK SCHRAGER, J.A. ÉRIC DESLAURIERS APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] The appellant appeals against a verdict rendered on September 22, 2017 by the Honourable Joëlle Roy of the Court of Québec, Criminal and Penal Division, District of Terrebonne, that found him guilty on the first count (manslaughter by unlawful act, namely, intentionally discharging a firearm while being reckless as to the life or safety of another person) and ordered a stay of proceedings on the second count (criminal negligence causing death), pursuant to the rule against multiple convictions. [ 2 ] For the reasons of Chamberland, J.A., with which Schrager, J.A. concurs, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the guilty verdict on the first count and the stay of proceedings on the second count; and [ 5 ] RETURNS the matter to the court of first instance for a new trial on both counts; [ 6 ] For other reasons, the Chief Justice would have dismissed the appeal, being of the opinion that the trial judge was correct in not ordering the disclosure of information and records regarding the victim under the Youth Criminal Justice Act and that she did not err in her analysis of the facts or her treatment of the expert evidence.

NICOLE DUVAL HESLER, C.J.Q. JACQUES CHAMBERLAND, J.A. MARK SCHRAGER, J.A. Mtre Tristan Desjardins CARETTE DESJARDINS Mtre Nadine Touma LES AVOCATS POUPART, TOUMA For the appellant Mtre Julie Laborde Mtre Maxime Hebrard

DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Date of hearing: January 21, 2020 REASONS OF CHAMBERLAND, J.A. [ 7 ] On September 22, 2017, [1] after a lengthy trial, the trial judge found the appellant guilty of the two charges brought against him, namely, manslaughter by intentionally discharging a firearm while being reckless as to the life or safety of another person ( ss. 234 , 236 (

a) and 244.2(1) (

b) Cr.C . ) and criminal negligence causing the death of D.H.-L. [2] (ss. 222(5), 234 and 236(

a) Cr.C . ), although she ordered a stay of proceedings on the second count pursuant to the rule against multiple convictions. [3] [ 8 ] The appellant, a police officer with the Sûreté du Québec, acknowledged that he had shot D.H.-L., but claimed that it had been in self-defence. [ 9 ] The trial judge rejected his grounds of defence. [ 10 ] For the reasons that follow, I would allow the appeal, set aside the guilty verdict and order a new trial. [ 11 ] I will begin with a description of the law that applies to the charges brought against the appellant and to the grounds of defence raised.

Next, I will describe the tragic events that led to the death of D.H.-L., before moving on to the grounds raised by the appellant, paying particular attention to those which, in my opinion, justify this Court’s intervention. The charges and the grounds of defence codified in ss. 25 and 34 of the Criminal Code Manslaughter [ 12 ] The first count is one of manslaughter by unlawful act (the underlying offence), namely, having intentionally discharged his service firearm while being reckless as to the life or safety of another person, which offence is set out in s. 244.2(1) (

b) Cr.C . [ 13 ] The actus reus of the underlying offence is having intentionally discharged a firearm. [ 14 ] As for the mens rea of this offence, whose fault element includes recklessness, there is some controversy in the doctrine. For some authors, the mens rea , which is one of general intent, is double-barrelled, comprising a subjective component and an objective component. The accused is aware that there is a risk his conduct could bring about the prohibited result (subjective) and he nevertheless runs the risk without doing so being justified in the circumstances (objective).

In short, there is awareness of the risk that the conduct may bring about a prohibited result and, in addition, the risk taken is unjustified in light of the circumstances. [4] This is the position the appellant adopted. [ 15 ] For other authors, there is mens rea when the accused is aware that there is a risk his conduct could bring about the prohibited result and he nevertheless runs the risk.

The fact that his conduct is justified in light of the circumstances forms part of the defences the accused could raise, such as self-defence or, as in the case at bar, the defence of justification codified in s. 25 Cr.C . [ 16 ] This is an interesting issue, but, given the grounds of defence the appellant raised, particularly the one set out in s. 25 Cr.C . with respect to a police officer who uses force in the administration or enforcement of the law, I do not think it is one I need to decide.

In fact, save for the situations covered by the defences of justification codified in the Criminal Code , I have great difficulty imagining a situation in which the risk of killing or seriously harming someone could be justified without the use of one of those defences. [5] [ 17 ] I am all the more inclined to be prudent given that, in Hamilton , [6] a case involving the offence of having “counselled” another person to commit a crime, Fish, J., writing for the majority, stated that “[t]he ‘substantial and unjustified risk’ standard of recklessness has venerable roots in Canada […]”. [7] He applied that standard to the case before him, referring to the “conscious disregard of the substantial and unjustified risk inherent in the counselling”, [8] while specifying, however, a few paragraphs later, that his reasons should not be taken as a revisiting or fresh consideration of the “governing principles of recklessness as a fault element under the criminal law of Canada”. [9] The question therefore remains open for other offences involving recklessness as a fault element, including the underlying offence with which we are faced here. [ 18 ] I now return briefly to the concept of manslaughter to add that, over and above the unlawful act that is the underlying offence, the Crown must also establish that the risk of non-trivial bodily harm was reasonably foreseeable at the time of the accused’s unlawful acts. [10] Criminal negligence causing death [ 19 ] The actus reus of this offence requires proof that the accused, by his acts or omission, endangered the life and safety of another person and thereby caused his death. [11]

[ 20 ] Mens rea , the mental element of the offence, requires proof that the accused’s conduct was a marked and substantial departure from that of a reasonable person (here, a police officer) in the same circumstances. [12] [ 21 ] The analysis of this element of the offence of criminal negligence involves a two-step process. First, one should ask whether, given all of the evidence, a reasonable person would have foreseen the risk and taken measures to prevent it if possible.

If so, one should then determine whether the failure to foresee the risk and take measures to avoid it if possible amounts to a marked and substantial departure from the standard of care a reasonable person in the same circumstances as the accused would have exercised . The protection of persons administering the law [ 22 ] The appellant, a police officer, was performing his duties at the time of the events. In support of his defence, he relied on the rules set forth in subsections (1) and (3) of s. 25 Cr.C . : 25

(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (

a) as a private person, 25

(1) Quiconque est, par la loi, obligé ou autorisé à faire quoi que ce soit dans l’application ou l’exécution de la loi :

a) soit à

titre de particulier; (

b) as a peace officer or public officer, (

c) in aid of a peace officer or public officer, or (

d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose . […]

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm . […]

b) soit à

titre d’agent de la paix ou de fonctionnaire public;

c) soit pour venir en aide à un agent de la paix ou à un fonctionnaire public;

d) soit en raison de ses fonctions, est, s’il agit en s’appuyant sur des motifs raisonnables , fondé à accomplir ce qu’il lui est enjoint ou permis de faire et fondé à employer la force nécessaire pour cette fin . […]

(3) Sous réserve des paragraphes (4) et (5), une personne n’est pas justifiée , pour l’application du paragraphe (1), d’employer la force avec l’intention de causer, ou de nature à causer la mort ou des lésions corporelles graves, à moins qu’elle n’estime, pour des motifs raisonnables, que cette force est nécessaire afin de se protéger elle-même ou de protéger toute autre personne sous sa protection, contre la mort ou contre des lésions corporelles graves . […] [Emphasis added] [ 23 ]

Section 25 Cr.C . is intended to protect, under certain conditions, those who administer and enforce the law against any criminal liability when they are required to use force within the scope of their duties. [ 24 ] Subsection (1) gives a police officer, if he acts on reasonable grounds, the right to do what he is required or authorized to do and

to use as much force as is necessary for that purpose. Subsection (3) completes the rule by specifying that a police officer is not justified in using force that is likely to cause death or grievous bodily harm unless he believes on reasonable grounds that it is necessary for his self-preservation from death or grievous bodily harm. Self-defence [ 25 ] On March 11, 2013, the Citizen’s Arrest and Self-Defence Act [13] came into force, including new s. 34 of the Criminal Code : 34.

(1) A person is not guilty of an offence if: (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances . Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; 34.

(1) N’est pas coupable d’une infraction la personne qui, à la fois

a) croit, pour des motifs raisonnables, que la force est employée contre elle ou une autre personne ou qu’on menace de l’employer contre elle ou une autre personne;

b) commet l’acte constituant l’infraction dans le but de se défendre ou de se protéger — ou de défendre ou de protéger une autre personne — contre l’emploi ou la menace d’emploi de la force ;

c) agit de façon raisonnable dans les circonstances . Facteurs

(2) Pour décider si la personne a agi de façon raisonnable dans les circonstances, le tribunal tient compte des faits pertinents dans la situation personnelle de la personne et celle des autres parties, de même que des faits pertinents de l’acte, ce qui comprend notamment les facteurs suivants :

a) la nature de la force ou de la menace;

b) la mesure dans laquelle l’emploi de la force était imminent et l’existence d’autres moyens pour parer à son emploi éventuel;

c) le rôle joué par la personne lors de l’incident;

d) la question de savoir si les parties en cause ont utilisé ou menacé d’utiliser une arme;

e) la taille, l’âge, le sexe et les capacités physiques des parties en cause;

f) la nature, la durée et l’historique des rapports entre les parties en cause, notamment tout emploi ou toute menace d’emploi de la force

(

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. No defence (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. avant l’incident, ainsi que la nature de cette force ou de cette menace; f.1) l’historique des interactions ou communications entre les parties en cause;

g) la nature et la proportionnalité de la réaction de la personne à l’emploi ou à la menace d’emploi de la force;

h) la question de savoir si la personne a agi en réaction à un emploi ou à une menace d’emploi de la force qu’elle savait légitime. Exception

(3) Le paragraphe (1) ne s’applique pas si une personne emploie ou menace d’employer la force en vue d’accomplir un acte qu’elle a l’obligation ou l’autorisation légale d’accomplir pour l’exécution ou le contrôle d’application de la loi, sauf si l’auteur de l’acte constituant l’infraction croit, pour des motifs raisonnables, qu’elle n’agit pas de façon légitime. [Emphasis added] [ 26 ] The first subsection of the provision sets out the three criteria that must be present in order for this ground of defence to apply: ‒ the person must believe, on reasonable grounds , that force is being used or threatened against them or another person (an objectively verified subjective perception); ‒ the person must act for the purpose of defending themselves, or another person, from the use or threatened use of force (a subjective state of mind); ‒ the act committed must be reasonable in the circumstances (evaluated objectively). [14] [ 27 ] In considering whether or not the acts committed by the person defending themselves from the use or threatened use of force against them is reasonable, the judge must remember that people placed in stressful and dangerous situations do not have the luxury of in-depth reflection and will inevitably make errors of judgment and fact, such as in assessing the force required to counter the threat. [15] Their actions should not be judged against a standard of perfection. [16] [ 28 ] In either case, be it the defence of justification provided for in s. 25 Cr.C . or that of self-defence provided for in s. 34 Cr.C . , the accused bears the evidential burden.

Where that evidence gives the defence an air of reality, the Crown has the burden of persuading the judge, beyond a reasonable doubt, that the defence does not apply. [17] Context [ 29 ] The incident that gave rise to the charges brought against the appellant occurred while he was performing his duties as a sergeant in the Sûreté du Québec and was about to intercept the driver of a stolen vehicle in the parking lot of a high school in Sainte- Adèle, during the lunch hour, on January 22, 2014. [ 30 ] The appellant strongly disagrees with the trial judge’s description of the events in her decision.

He is of the view that her

summary is fundamentally mistaken and totally inconsistent with the evidence, and it is one of his grounds of appeal. [ 31 ] For now, I will therefore provide a cautious

summary of the evidence, while highlighting the points where the trial judge and

the appellant disagree. [ 32 ] On January 22, 2014, the appellant was driving a police car. At the beginning of his work shift, he had been informed that a red Mazda RX-8 vehicle had been stolen. He knew the licence plate number. He also knew that the vehicle was connected to three thefts at automated teller machines. Lastly, he knew that the vehicle had been seen at the Sainte-Adèle high school in the morning.

He attempted to locate the stolen vehicle, which led him to the yard of the Sainte-Adèle high school during the lunch hour. [ 33 ] While exiting the high school parking lot, he passed by the stolen vehicle. He noticed that the driver was a young man. He asked for backup before doing a U-turn and going back to the parking lot.

He knew that two police offers had answered his call and were on their way to the high school. [ 34 ] D.H.-L., the driver of the stolen vehicle, dropped off two young girls in the yard of the high school. [ 35 ] The vehicle remained stopped, with the engine still on. [ 36 ] During this time, the appellant unhurriedly parked his police car so as to block the exit from the parking lot. He then got out of his vehicle with his hand on his belt.

Once he was in front of his vehicle, and after having noted that the two young girls had now moved away from the stolen vehicle, he drew his service weapon, holding it with both hands, at a 45-degree angle towards the ground. [ 37 ] From this point onward, the appellant disagrees with the judge’s description of the facts. [ 38 ] According to one witness who testified at trial, the driver of the stolen vehicle revved the engine three or four times while looking at the police officer [ translation ] “mockingly”. [ 39 ] The police officer asked the driver to raise his hands, which he did, only to immediately lower them. [18] [ 40 ] The driver’s side window of the vehicle was down. [ 41 ] The appellant asked the driver, two more times, to raise his hands.

The second time, the driver placed his hands through the open window frame for three or four seconds. The appellant, who believed the young driver was willing to cooperate, then approached the stolen vehicle. He noticed that the wheels of the vehicle were turned towards the left, in his direction. [ 42 ] When he was some fifteen feet from the vehicle, the driver placed his hands back on the wheel and put the vehicle back in motion, pressing all the way down on the gas pedal. [ 43 ] The appellant fired one shot, and then a second.

The two shots were consecutive, the time between them being minimal; they were separated by the time it took to pull the trigger. [ 44 ] The first shot hit D.H.-L. in the left elbow, and the second, which was fatal, in the neck. [ 45 ] The vehicle grazed the appellant, passed between the police car and another parked vehicle and ended its trajectory in a snow bank. [ 46 ] The appellant immediately went to D.H.-L.’s aid, but was unsuccessful.

Grounds of appeal [ 47 ] The appellant raises some ten grounds, grouped together in his brief and in his oral arguments under six headings: the disclosure of the evidence, the complaints regarding the first count, the complaint regarding the second count, the unreasonable assessment of the evidence, the expert evidence and, lastly, the recusation of the trial judge. [ 48 ] I will address these in the same order.

Disclosure of the evidence [ 49 ] Since D.H.-L. was felled by a shot fired by a Sûreté du Québec police officer, the investigation was entrusted, as the rule requires it, to another police force, the Service de police de la Ville de Montréal (SPVM). [ 50 ] The evidence disclosed by the Crown revealed the existence of documents related to three criminal investigations involving D.H.-L. (breaking and entering into a store in April 2013, homicide in February 2012 and theft in October 2012) and related to follow-up at the Centre intégré de santé et de services sociaux des Laurentides (CISSS des Laurentides), by probation officer Simon Blanchette, within the scope of a closed custody sentence imposed on D.H.-L. under the Youth Criminal Justice Act . [19] [ 51 ] On January 17, 2017, appellant’s counsel asked the Crown to disclose the investigation reports pertaining to the three events that occurred in 2012 and 2013 and, in two of the cases, the police officers’ personal notes. [ 52 ] On January 24, 2017, one of the respondent’s lawyers sent an email stating that she was awaiting a response from the Sûreté du Québec regarding the requested documents.

These efforts quickly proved unsuccessful, because the Sûreté du Québec refused to disclose, be it to the accused or to the Crown, the incident reports and the notes of the police officers in charge of the investigations, arguing that they were not the fruits of the investigation related to the accused’s file. [ 53 ] On February 17, 2017, the appellant presented a motion to the trial judge seeking a review of the Crown’s refusal to disclose

and seeking the production of and access to evidence held by third parties. [ 54 ] At that time, the appellant argued, as he still does, that, in virtue of the ruling in Stinchcombe , [20] he had a right to those reports and to the personal notes of the police officers with respect to those three investigations where D.H.-L.’s DNA had been collected.

Subsidiarily, he argued, as he still does, that the disclosure of those documents should be ordered under the disclosure regime described in O’Connor , [21] as should the disclosure of the intervention and follow-up file pertaining to the execution of the youth sentence that D.H.-L. was serving and any other document regarding D.H.-L. that was in the possession of Mr.

Simon Blanchette and the CISSS des Laurentides. [ 55 ] The appellant wanted to obtain that evidence to show the violent nature of the driver of the stolen vehicle in order to support his theory of the case to the effect that the mens rea of the offences had not been proved because his use of force (his service weapon) had been justified or, from the perspective of the grounds of defence codified in s. 25(3) or s. 34(1) Cr.C . , his use of force had been necessary in order to protect himself as the vehicle was charging in his direction while fully accelerating.

The appellant therefore wanted to obtain that information to corroborate his version of the facts. [ 56 ] On March 22, 2017, the trial judge concluded that the procedure established in O’Connor applied, because the evidence sought was not in the possession of the Crown, but in the possession of third parties, namely, the SQ, the CISSS des Laurentides and Mr. Blanchette. [ 57 ] The judge was of the opinion that, in the case at bar, the accused had not passed the first step of the procedure, because the evidence sought was not likely relevant.

Since the accused did not know the identity of the driver he was about to stop and question, the judge deduced that he could not invoke a subjective fear based on a propensity for violence of the person he had before him. [ 58 ] The judge added that evidence of propensity aimed at establishing the probability that the driver had charged the accused with his vehicle did not satisfy the jurisprudential minimum requirement of “likely relevance”. [ 59 ] The appellant argues that this decision is wrong in that, first, the judge should have concluded that the first party disclosure regime applied to the investigation reports and personal notes of the police officers and, second, if the applicable regime was indeed that of third party disclosure, the evidence sought, from the police officers as well as from Mr.

Blanchette and the CISSS des Laurentides, satisfied the jurisprudential likely relevance test. [ 60 ] In my view, the appellant is wrong regarding the choice of applicable disclosure regime, but, with all due respect for the trial judge, he is right as regards the first step of the disclosure regime described in O’Connor . [ 61 ] The reports and personal notes of the police officers pertaining to three Sûreté du Québec investigation files with which D.H.- L.’s DNA profile was associated, according to an expert report sent by the respondent to appellant’s counsel, were not in the possession of the Crown or the SPVM, which led the investigation.

In fact, they were in the possession of a third party, the Sûreté du Québec. They were not under the control of the Crown or the police force that led the investigation, even if the appellant was made aware of the three files in question when examining the evidence that had been sent to him within the scope of the Crown’s disclosure of evidence.

Lastly, it appears that the Crown’s efforts [22] to obtain the relevant documents from the Sûreté du Québec were unsuccessful. [ 62 ] However, and with all due respect for the trial judge, I am of the view that the evidence whose disclosure the appellant sought, both from the police and from social services, met the burden imposed on the accused in the first step of the procedure established in O’Connor . [ 63 ] This burden is significant, but not onerous, because, at this stage of the proceedings, the accused has not yet seen the documents, reports or notes sought. [23] It is sufficient if the appellant establishes that there is a reasonable possibility that the information sought is probative to an issue at trial (as regards the events or the probative value of the evidence) or the competence of a witness to testify. [24] [ 64 ] In the present case, the defence’s theory was that D.H.-L. had charged at the accused with his vehicle, thereby justifying the use of his service weapon’s lethal force to protect himself. [ 65 ] D.H.-L.’s conduct towards the police officer who was trying to stop and question him while D.H.-L. was at the wheel of a stolen vehicle was at the heart of the analysis as regards assessing whether or not the police officer’s act had been justified, both from the perspective of the defence of justification ( s. 25 Cr.C . ) and from the perspective of self-defence ( s. 34 Cr.C . ).

Evidence of a propensity for violence (or, in the specific case before us, for insubordination) on the part of D.H.-L. would have been relevant in order to give weight to the accused’s version of how the intervention occurred, indeed to corroborate that version, even if he did not know the identity of the driver at the time of the incident. [ 66 ] The same is true as regards the charge of criminal negligence, because proof of culpable intent ( mens rea ) requires that the accused’s conduct be compared with that of a reasonable person, in the instant case a police officer, in the same circumstances , in order to see if there was a marked and substantial departure from that reasonable person’s conduct. [ 67 ] Thus, all evidence that could corroborate the accused’s version was “likely” relevant. [ 68 ] In Scopelliti [25] , Martin, J.A., writing for the Ontario Court of Appeal, stated: Obviously, evidence of previous acts of violence by the deceased, not known to the accused, is not relevant to show the reasonableness of the accused’s apprehension of an impending attack.

However, there is impressive support for the proposition that, where self-defence

is raised, evidence of the deceased’s character (i.e. disposition) for violence is admissible to show the probability of the deceased having been the aggressor and to support the accused’s evidence that he was attacked by the deceased . [ Emphasis added ] [ 69 ] This Court expressed the same opinion in Brousseau , [26] at paragraphs 19 and 26 : [ translation ] [19] Since Scopelliti , it has been accepted that the defence may adduce evidence of the victim’s propensity to commit acts of violence, regardless of the fact that the accused had no knowledge of the prior acts of violence at the time of the alleged self-defence.

That evidence does not serve to demonstrate the accused’s state of mind and the reasonableness of his perceptions at the time of the attack, but rather to support evidence that the victim did in fact assault the accused . As Martin, J.A. noted: Obviously, evidence of previous acts of violence by the deceased, not known to the accused, is not relevant to show the reasonableness of the accused’s apprehension of an impending attack.

However, there is impressive support for the proposition that, where self-defence is raised, evidence of the deceased’s character (i.e., disposition) for violence is admissible to show the probability of the deceased having been the aggressor and to support the accused’s evidence that he was attacked by the deceased. […] [26] The analysis must nevertheless proceed as the Crown suggested in its arguments.

Evidence of the victim’s violent nature, or of prior violent acts, is admissible insofar as it is relevant to the state of self-defence invoked by the accused, and the trial judge has the discretion to reject such evidence if it has little probative value: Since evidence of prior acts of violence by the deceased is likely to arouse feelings of hostility against the deceased, there must inevitably be some element of discretion in the determination whether the proffered evidence has sufficient probative value for the purpose for which it is tendered to justify its admission.

Moreover, great care must be taken to ensure that such evidence, if admitted, is not misused. [ Emphasis added ; references omitted] [ 70 ] The 2013 reform of the Criminal Code provisions on self-defence seems to echo that guidance.

Section 34(2) Cr.C . sets out, in a non-exhaustive list, the factors that the judge may consider to determine whether “[…] the act committed [by the accused] is reasonable in the circumstances”, including “ the relevant circumstances of the person [invoking the self-defence], the other parties and […]”. [Emphasis added] [ 71 ] In my view, the judge therefore erred in dismissing the appellant’s motion to disclose evidence at the first step of the third party disclosure regime.

The information was likely relevant and there was a “reasonable possibility that it [might] assist the accused in the exercise of the right to make full answer and defence”. [27] This was not a fishing expedition by the appellant.

With all due respect, the judge should have moved on to the second step of the analysis, which would have allowed her to examine the documents in question and determine whether they were truly relevant, to balance the interests of each of the parties and to decide whether the documents should be disclosed to the accused and, if so, to what extent and under what conditions. [ 72 ] In my view, excluding information at the first step of the procedure established in O’Connor when that information was, at first glance, relevant to proving the accused’s innocence, without having seen what the evidence, was not in the interests of the accused nor, given the presumption of innocence at the very heart of our criminal justice system, in the interests of justice. [ 73 ] The error is material because it may have interfered with the appellant’s right to make full answer and defence. [ 74 ] To be convinced of this, one need merely remember that the appellant stated that the young driver had steered his vehicle towards him, with his foot on the gas pedal, causing him to fear for his life and leaving him with no option but to use his weapon to neutralize the threat.

Everything happened very quickly from the moment when the stolen vehicle, which, until then, had been stopped, charged towards him. [ 75 ] The trial judge did not accept his version of the facts, nor did that version raise a reasonable doubt in her mind. She even doubted that the appellant had ever been in the path of the vehicle and had feared for his life (paras. 50, 115, 116 and 126) and she stated that [ translation ] “clearly” the vehicle was not charging at him at the time the second shot was fired (paras. 128 and 132).

Her analysis of the defence raised by the accused was intimately connected to the version of the facts she accepted. Would she perhaps have assessed that evidence differently if she had had the benefit of the additional evidence the accused sought to obtain?

Even though she did not believe the accused, could that additional evidence perhaps have raised a reasonable doubt in her mind? [ 76 ] This error justifies the intervention of the Court and a new trial. [ 77 ] I will nevertheless continue my analysis of the grounds of appeal, because, in my view, and with all due respect for the trial judge, there are other flaws in her reasoning that merit discussion. Complaints regarding the first count [ 78 ] The appellant raises three complaints with respect to the way the trial judge handled the count of manslaughter by unlawful act, namely, that she found him guilty (

a) without having determined whether the underlying offence (having recklessly discharged his firearm) had been committed; (

b) without having considered that the mens rea of the underlying offence required both that the accused have been aware of the risk that his conduct would bring about the prohibited result (subjective) and that the risk he took was unjustified

in the circumstances (objective); and, finally, (

c) on the basis of insufficient reasons. [ 79 ] I acknowledge that the drafting of the judgment under appeal may seem somewhat puzzling at first sight. After a very brief

summary of the facts (to which she returned in greater detail further on in the judgment), the judge stated the two issues she had to resolve, both of which pertained to the grounds of defence the appellant had raised.

She did not say a word about the elements that made up the charges brought against the appellant and that the prosecution was required to prove them beyond a reasonable doubt. [ 80 ] That being said, the appellant is wrong to say that the judge failed to decide whether the underlying offence of manslaughter had been committed, i.e., here, the offence of having caused the death of D.H.-L. by intentionally discharging his firearm while being reckless as to the life or safety of his target.

She dealt with it specifically as of paragraph 106 of the judgment under appeal. [ 81 ] The judge noted that the appellant had used his service weapon to fire two shots at the driver of the vehicle, knowing that this could only result in grievous bodily harm. The actus reus was therefore clearly established. As regards mens rea , the judge concluded that the accused had been aware that there was a risk his conduct could result in grievous bodily harm, even the death of the driver. [ 82 ] In my opinion, the appellant is wrong to argue that the judge did not analyze whether or not his conduct had been justified.

She analyzed the entire situation in light of the facts that she, rightly or wrongly, accepted, concluding that the risk the appellant had taken was unjustified because the vehicle was not charging at him and he did not truly fear for his life. [ 83 ] In my view, it is also wrong to state that the judge limited her analysis to the offence of criminal negligence, which is the second count. [ 84 ] In my opinion, the appellant is therefore wrong to argue that the judge found him guilty on the basis of insufficient grounds, even if, strictly speaking, he is right to say that the judgment contains no

section pertaining to the charge of manslaughter by unlawful act, no reference to the elements that make up the underlying offence and no mention of s. 244.2(1) (

b) Cr.C . [ 85 ] It seems fairly clear to me that, given the nature of the appellant’s actions, the only true issue was whether he had been justified in using his service weapon, be it under s. 25 Cr.C . or s. 34 Cr.C . This explains why the trial judge chose to build her reasoning around the grounds of defence the accused had raised. In doing so, at the same time she sealed the fate of the offence underlying manslaughter and the fate of the offence of criminal negligence. [ 86 ] This ground of appeal must fail.

Complaint regarding the second count [ 87 ] The actus reus of the offence of criminal negligence causing death requires proof that, objectively, the accused endangered the life and safety of another person and thereby caused his death.

The mens rea requires proof that the accused’s conduct was a marked and substantial departure from that of a reasonable person in the same circumstances. [ 88 ] The appellant argues that the trial judge was mistaken in identifying the elements of the offence, be it with respect to the actus reus or the mens rea . [ 89 ] In my view, this reproach is unfounded. [ 90 ] As regards the actus reus , the judge concluded that the act of [ translation ] “discharging such a firearm [28] while aiming for the head and shoulders was a dangerous act.

The actus reus is clear”. [29] I have difficulty in seeing any error whatsoever here. This conclusion is based on a correct application of the law to the facts of the case [30] and does not disclose any reviewable errors. [ 91 ] As regards the mens rea , it is true that, at one point, the judge referred to [ translation ] “a marked departure” [31] and at another point, as is required in matters of criminal negligence, to [ translation ] “a marked and substantial departure”. [32] In my opinion, the reference to this Court’s decision in R. c.

Czornobaj [33] and the fact that she pointed out that the parties had not had the benefit of that decision when making their arguments dispels any concern regarding the standard she applied to the mens rea component of the offence of criminal negligence causing death. [ 92 ] In this regard, after having determined that the accused had shot twice with a weapon whose power and speed were familiar to him, and while aiming at the suspect’s shoulders and head, the judge concluded that there had been [ translation ] “an objective foreseeability of death, thus much more than a risk of harm” from the injuries caused to D.H.-L. [34] Then, focusing on the manner in which the accused had managed that risk, she concluded that there had been [ translation ] “culpable intent […] greater than recklessness” [35] . [ 93 ] In this context, the respondent is right in arguing that the judge was not required to elaborate further on her thinking regarding the existence of a marked and substantial departure of the appellant’s conduct from that of a reasonable person.

Complaints regarding the assessment of the evidence [ 94 ] As regards this ground of appeal, the appellant argues that the trial judge made findings of fact that are inconsistent with evidence that was neither contradicted nor rejected, including his own testimony.

He claims that these are overriding errors in that they pertain to facts that are at the very foundation of his defence to the effect that D. was charging at him with the stolen vehicle, thereby justifying the use of force within the meaning of ss. 25(3) and 34(1) Cr.C . [ 95 ] The appellant also argues that the judge erred by disregarding evidence that was favourable to him. [ 96 ] According to the appellant, the judge’s

summary of the events in her judgment is so inconsistent with the evidence that it gives

the false impression that his intervention was totally unjustified and that he alone provoked the incident that cost the young driver his life. [ 97 ] At the hearing, the appellant sorted through the many [ translation ] “errors” described in his brief and only mentioned a few. [ 98 ] Let us consider those alleged errors. [ 99 ] In her account of the accused’s testimony, the judge wrote that he waited until the two young female passengers had moved away from the stolen vehicle before approaching it and ordering the driver to raise his hands, which the latter did. [36] [ 100 ] The appellant, however, stated that once he got out of the police car, he walked towards the front of the police car, without approaching the red Mazda.

His intention was to ask the driver to raise his hands and keep them raised so he could see them clearly, given that he did not know if the driver was armed. But before he could even speak to him, the driver revved the engine of the vehicle several times while staring him down. [ 101 ] The appellant perceived this as a threat to hit him with the vehicle. [ 102 ] The appellant, who was still standing in front of the police car facing the red Mazda, asked the driver to raise his hands, which the latter did for one second before lowering them. He once again asked him to raise his hands, but the driver did not react.

The appellant therefore told him, a third time, to show his hands, which the suspect did, but only partially, for barely three or four seconds. [ 103 ] This version described by the appellant is corroborated by the witnesses J.T.-M. and M.B., two students, M.B. having stated that the suspect [ translation ] “didn’t give a damn” about the police officer and, instead, was revving his vehicle’s engine. [ 104 ] The testimony of Yvon Rioux, a teacher, and Julie Duchesneau, a special education technician, are to the same effect, a lack of cooperation from the suspect and the revving of his vehicle’s engine. Mr.

Rioux confirmed that the young driver was looking at the appellant with a mocking smile, defiantly. [ 105 ] The judge then wrote that the appellant aimed at the driver while approaching the red Mazda, with his weapon still pointed towards him. [37] The appellant, however, stated that he had aimed at the suspect only after he realized that he was charging towards him. He was afraid and feared for his life. The only option that seemed available to him was to immediately neutralize the threat.

This is why he decided to take two consecutive shots, without moving or repositioning himself between the two shots. [ 106 ] Contrary to what the judge wrote, it appears that no witness clearly stated that the appellant had aimed at the suspect while starting to approach the red Mazda. On the contrary, M.B. stated that the appellant was holding his weapon pointing towards the ground until the driver charged towards him with his car. According to that witness, it was only when the red Mazda was [ translation ] “really close” to him that the appellant fired. J.T.-M. and Mr.

Rioux confirmed this. [ 107 ] It therefore seems mistaken to conclude that the appellant approached the red Mazda with his weapon aimed at the suspect.

It seems more accurate to say that the appellant approached the stolen vehicle, his weapon held in both hands, at a 45-degree angle towards the ground, and that he pointed it towards the suspect only after noting that he was charging in his direction while accelerating. [ 108 ] The judge was correct in writing that the appellant shot in the suspect’s direction because [ translation ] “the vehicle was charging in his direction” and that, fearing for his life, he believed he had no other option but to neutralize the threat. [38] She added, however, that one witness, Yvon Rioux, was [ translation ] “assertive”: the police officer was not in the vehicle’s path”. [39] Later on in her analysis, the judge divided the sequence of events into two moments, depending on whether it involved the first shot or the second shot.

She wrote that she had [ translation ] “a doubt” as to whether or not the vehicle was charging at the appellant at the time of the first shot [40] , while, [ translation ] “clearly”, at the time of the second shot the vehicle was not charging at him. [41] Slightly further on, the judge seemed to abandon the idea of a two-step sequence, concluding, on this crucial point, that [ translation ] “[t]he Court does not believe that the vehicle was charging at the accused […]”. [42] [ 109 ] A reading of the entirety of Mr.

Rioux’s testimony, however, indicates that he was far from assertive when referring to the path of the red vehicle. At one point, and this is probably what the trial judge focused on, he stated that the police officer was not in the vehicle’s path, but at another point, a little later on, he seems to have said that the vehicle was heading towards the police officer. One thing is certain, according to Mr.

Rioux, the back of the vehicle skidded (under-steered) on the hard icy surface of the parking lot as it started to move, so that it was then heading towards the parking lot’s exit and, at the very least, in the police officer’s general direction. [ 110 ] As for the other witnesses, J.T.-M. confirmed on several occasions that the red vehicle was charging at the police officer, who even made a [ translation ] “jump” to his left before shooting. M.B’s testimony was exactly to the same effect. For her part, Ms.

Duchesneau was unable to describe the path of the vehicle, but she stated that the accused was clearly in front of it. [ 111 ] In short, the trial judge mistakenly referred to Mr. Rioux’s testimony to confirm her conclusion that, contrary to what the accused had stated, the vehicle had not been charging in his direction, while ignoring the testimony of the other witnesses, who had confirmed the accused’s version.

Moreover, the judge said nothing about the images extracted from the video shot by J.T.-M., a student, where the front wheels of the vehicle can be seen to be turned to the left at the time the vehicle grazes the police officer on the driver’s side. [ 112 ] The trial judge also wrote that, although the appellant did not change position after the first shot, he [ translation ] “somewhat repositioned” himself to take the second shot, leaving the impression that there had been a real pause between the two shots. [43] It is important to note, which the judge did in fact do, that, according to the appellant, the time between the two shots was minimal; they were separated by the time it took to pull the trigger again.

The shots were consecutive. Everything happened very quickly. The expert, Mr. Poulin, stated that the appellant’s service weapon could easily shoot four bullets per second. The appellant stated that he had not repositioned himself between the two shots.

[ 113 ] Finally, in her analysis of the ground of defence raised by the appellant, a police officer in the performance of his duties, the judge wrote that at the time the accused aimed at the suspect, the suspect had nothing in his hands and the police officer had [ translation ] “no information” suggesting he was dangerous. [ 114 ] According to the evidence, however, at that moment, the appellant could no longer see the suspect’s hands, nor did he know whether the suspect had access to a weapon hidden on him or inside the vehicle.

The police officer did know, however, that the suspect was at the wheel of a stolen vehicle whose engine he had revved 3 or 4 times while looking at him mockingly. He also knew that the suspect was not following his orders, notwithstanding that there could be no mistaking that he was a police officer in the performance of his duties. Moreover, he knew that the suspect was at the wheel of a vehicle associated with three thefts at automated teller machines.

Lastly, he knew that the suspect was definitely motivated by malicious intent, given that he was charging at him with his foot pressed hard on the gas pedal. [ 115 ] In short, while it is true that the accused did not know the identity of the young man, the information he had gathered since the morning, and particularly since the beginning of his intervention in the high school parking lot, certainly allowed him to form an opinion, or at least begin to form an opinion, on the potential danger of the person with whom he was dealing. [ 116 ] Under these circumstances, I believe it is mistaken, if not downright unreasonable, to write that the accused had [ translation ] “no information” that could lead him to believe the individual before him was dangerous.

In my view, by writing this, the judge committed a material error, given the elements of the charges brought against the accused and the grounds of defence he raised. [ 117 ] The appellant fired at D.H.-L.; that is not contested.

His defence, whether from the perspective of the essential elements of the two offences the Crown was required to prove, or from the perspective of the defences codified in the Criminal Code in s. 25 (for persons who, like him, administer the law) and s. 34 (self-defence), consisted in saying that he had used his service weapon to protect himself, given that the suspect at the wheel of a stolen vehicle had refused to follow his orders while charging at him in full acceleration. [ 118 ] The unfolding of this tragic incident—certainly the conduct of the police officer, but also that of D.H.-L.—is at the heart of this defence.

With all due respect for the trial judge, in my view, the version of the facts she accepted seems inconsistent with the evidence on certain points that are at the heart of the accused’s defence, for example, the crucial questions of when the appellant aimed at D.H.-L. and whether or not the vehicle was charging at him. [ 119 ] If only on those two points, the appellant has convinced me that the picture the trial judge drew of the situation that unfolded is unreasonable and necessarily had an impact on her assessment of his grounds of defence.

In my opinion, given that these are errors on facts of vital importance to the defence, there is a real risk of a miscarriage of justice. I do not claim that, without these errors, the ultimate conclusion would have been different, but I believe it could have been. In my view, this justifies a new trial. The expert evidence [ 120 ] The appellant called two expert witnesses in support of his defence: Pierre Bellemare, a crime scene reconstruction expert, and Bruno Poulin, an expert in the use of force and police interventions. The trial judge did not accept Mr.

Poulin’s conclusions, finding that they were irrelevant in the context of criminal proceedings and that he was biased. Moreover, she was of the view that the document entitled “le Modèle national de l’emploi de la force”, the national use of force model issued by the École nationale de police du Québec, the police academy, and filed in support of Mr.

Poulin’s testimony, had [ translation ] “very little probative value” [44] . [ 121 ] With all due respect for the trial judge, in light of the charges brought and the defences raised, I am of the view that she was mistaken in concluding that it was irrelevant to determine whether the police officer had acted in compliance with what is taught by police academies. [ 122 ] The defences codified in ss. 25 and 34 Cr.C . required that the trial judge consider whether the appellant had reasonable grounds to use his firearm and whether, in the context, the use of that potentially lethal force had been justified.

In that regard, it was relevant, although not binding on the judge, to know what police officers are taught about the use of force and, more precisely, to hear the expert’s opinion on the accused’s conduct at every step of the intervention in light of such training. [ 123 ] Furthermore, the charge of criminal negligence required, again as regards mens rea , that the judge determine whether the accused’s failure to foresee the risk related to his conduct, and take measures to avoid it if possible, had been a marked and substantial departure from the standard of care a reasonable person, here a police officer, in the same circumstances as the accused would have exercised. [ 124 ] The judge should therefore have considered what police officers are taught about the use of force, because, in principle, a reasonable police officer follows that training when performing his duties.

She needed to be informed as to the degree of force to be used during a police intervention based on the training provided in the police academies. [ 125 ] Given that judges do not likely have judicial notice of such training, Mr. Poulin’s expert evidence on the use of force and on police interventions was relevant and necessary. [45] [ 126 ] With all due respect for the trial judge, her conclusion that Mr. Poulin was biased seems unfounded given the evidence. From his testimony, it appears that Mr.

Poulin had a clear understanding of his role and that of the judge, the ultimate decision-maker on the issues to be adjudicated in a criminal trial. [ 127 ] He described and explained the standards and tables set out in the “Modèle national de l’emploi de la force”. The judge stated

that these tables dealt with the degree of force to be used during a police intervention, an [ translation ] “issue that the Court, and only the Court, should assess”. [46] The expert also expressed his opinion on the accused’s conduct throughout the intervention, in light of the training provided at the École nationale de police du Québec. [ 128 ] All of this seems perfectly correct to me, even if, ultimately, it was up to the judge to assess the evidence with respect to the Crown’s proof of the essential elements of the charges brought against the accused and with respect to the grounds of defence raised by the accused. [ 129 ] In my view, Mr.

Poulin did not go beyond what is expected of an expert. [ 130 ] It is worthwhile noting that, contrary to what the judge wrote, [47] the “Modèle national de l’emploi de la force” was filed by the Crown as part of its evidence, not by Mr. Poulin. The document filed by the latter is a PowerPoint presentation containing excerpts of that document.

One must conclude therefrom—and this is not surprising given the nature of the file—that the application of the training provided under the “Modèle national de l’emploi de la force” was an issue for both the respondent and the accused. [ 131 ] Experts are retained to inform the judge on precise, often technical, subjects of which judges do not have judicial notice, and when asked to do so, they also express their opinion, with all due respect for the judge who, of course, is the ultimate decision-maker. In my view, that is what Mr.

Poulin did. [ 132 ] Contrary to what the trial judge wrote, the final part of his examination did not show [ translation ] “an astonishing and unbounded bias” [48] , nor did he express the unqualified opinion that [ translation ] “the entire intervention [had been] consistent with what is taught at the École nationale de police”. [49] [ 133 ] Mr.

Poulin was entitled to his opinion and it is not because he believed that the intervention had been consistent with what is taught in the police academies—and that the judge saw things differently—that his testimony should be characterized as showing [ translation ] “an astonishing and unbounded bias”.

Furthermore, he did not express the unqualified opinion that the entire intervention had been consistent with what is taught at the police academies, given that, more than once during his testimony, he acknowledged that it [ translation ] “had not been perfect” and he explained why he had added that qualification. [ 134 ] Experts have “a duty to the court to give fair, objective and non-partisan opinion evidence”. [50] Any finding to the contrary by the court is serious and must be based on solid grounds.

For a judge to reject an expert’s testimony based on bias, “more than a simple appearance of bias is necessary”. [51] The judge must have grounds for concluding that the expert cannot, or does not want to, fulfil his duty to assist the court. In my view, that was not the case here. [ 135 ] Here, again, the police officer’s conduct within the scope of his intervention, when faced with D.H.-L.’s attitude, was at the very heart of his grounds of defence. The judge’s rejection of Mr.

Poulin’s testimony, particularly as regards the conformity of the appellant’s conduct with the training received, most likely had some effect on the analysis of the Crown’s evidence and the grounds of defence. Here, too, the error justifies a new trial. [ 136 ] I now turn to the issue of recusation. Recusation [ 137 ] I will examine this ground of appeal even if, at this stage of my analysis, I am of the view that the appeal should be allowed and a new trial ordered.

Indeed, it is possible, at least theoretically, that the new trial could be held before the same judge. [ 138 ] The guilty verdict was rendered on September 22, 2017. [ 139 ] On September 28, 2017, the appellant learned that, on February, 27, 2012, when the judge was a lawyer and president of the Association des avocats de la défense, an association of defence lawyers, she had said on television [ translation ] “[that she did not know] how many people are… are actually murdered by police officers”, and the following day, February 28, 2012, at the National Assembly in Quebec City, before the Commission permanente des institutions, a standing committee on institutions, she had stated that far too many police interventions had resulted in death, while deploring the small number of charges laid against police officers. [ 140 ] That same day, the appellant also learned that, on March 21, 2012, following a demand letter from the police brotherhood, the Fraternité des policiers et policières de Montréal, the judge, who was then a lawyer, had publicly apologized for her media statements, saying that these statements [ translation ] “had been inadequate and inappropriate in the circumstances”. [ 141 ] On January 18, 2018, the appellant asked the trial judge to recuse herself. [ 142 ] On January 26, 2018, the judge dismissed that application. [ 143 ] The appellant argues that the judge dismissed his application by merely noting that the notice of appeal did not contain any grounds of appeal alleging her bias and that there was no evidence whatsoever of the claims made, but without ever stating or considering the applicable test for recusation. [ 144 ] The appellant pleads that the judge was not entitled to find that there was no evidence, because the evidence in support of the application clearly established the remarks she had made, remarks that she herself later characterized as [ translation ] “inadequate and inappropriate” when she apologized. [ 145 ] According to the appellant, this was an error on the part of the trial judge and she should have considered that evidence and asked herself, in accordance with the guidance of the Supreme Court, which echoed the test established by the Federal Court of Appeal in the form of a question, [52] “what would an informed person, viewing the matter realistically and practically—and having thought the

matter through—conclude?

Would he think that it is more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly?” [ 146 ] Answering this question, the appellant states that the judge should have found it necessary to recuse herself, given that the remarks she had made while a lawyer had raised an appearance of bias. [ 147 ] The appellant adds, with all due respect for the trial judge, that her assessment of the evidence at the end of the trial tends to show that she did not consider it with an open mind. [ 148 ] The appellant concludes this ground of appeal by arguing, first, that the judge had the obligation to disclose, before the start of the trial, the remarks she had previously made and for which she had apologized publicly, which she did not do and, second, that she was not entitled to dismiss the application by relying on the fact that the notice of appeal did not contain any grounds of appeal alleging her bias, because the notice of appeal had been filed (October 20, 2017) before the application was even drafted (December 22, 2017, amended January 18, 2018). [ 149 ] In my view, this ground of appeal is unfounded. [ 150 ] Canadian judges enjoy a strong presumption of impartiality. [53] The party alleging bias must rebut that presumption by showing that the judge’s conduct gives rise to an apprehension of bias in the eyes of an informed, reasonable and right-minded person.

The grounds for the apprehension must be substantial.

It is not sufficient to show that the judge has beliefs, opinions or biases; it must be demonstrated that those beliefs, opinions or biases prevent the judge from setting them aside and coming to a decision on the basis of the evidence. [54] [ 151 ] The judge was right to conclude that her remarks, made on a single occasion, as president of an association of lawyers, several years earlier (five years) in the context of a general discussion on a proposed bill, could not, in and of themselves, give rise to a reasonable apprehension of bias unfavourable to the appellant in the eyes of [ translation ] “an informed person, viewing the matter realistically and practically—and having thought the matter through”. [55] [ 152 ] The mere use of the word [ translation ] “murdered”, while inadequate and inappropriate, and for which she apologized publicly at the time, is not compelling evidence likely to rebut the strong presumption of impartiality all Canadian judges enjoy because of the oath they swear when called to the bench and the rules of ethics that govern them. [ 153 ] That being said, if a new trial were to be held, as I propose, I believe it would be wise to hold it before another judge in order to avoid any unease. *** [ 154 ] For all these reasons, I would allow the appeal, set aside the guilty verdict on the first count and the stay of proceedings on the second count, and return the matter to the court of first instance for a new trial on both counts.

JACQUES CHAMBERLAND, J.A. REASONS OF THE CHIEF JUSTICE [ 155 ] I have had the benefit of reading the reasons of my colleague, Chamberland, J.A. I agree with his analysis of the grounds of appeal pertaining to the first count and the second count, as well as his analysis of the ground of appeal pertaining to the application for recusation of the trial judge, which grounds he rejected.

I am of the opinion, however, that the three grounds of appeal he proposes to accept are unfounded, namely, those pertaining to: (1) the trial judge’s decision not to order the disclosure of investigations carried out and records established with respect to the victim within the scope of the Youth Criminal Justice Act , (2) certain aspects of the trial judge’s analysis of the facts and, lastly, (3) her treatment of the expert evidence. In my view, the judgment is free of errors, such that there is no justification for ordering a new trial. I will limit my own analysis to those three grounds of appeal.

The Facts [ 156 ] I quote, here, paragraphs 1 to 7 of the trial judgment: [ translation ] [1] The accused is charged with two counts, namely, manslaughter by intentionally discharging a firearm while being reckless as to the life or safety of another person ( ss. 234 and 236 (

a) of the Criminal Code ( Cr.C . )) and having caused the death of D.-H.L. by criminal negligence ( ss. 222 (5) , 234 and 236 (

a) Cr.C . ). [2] On January 22, 2014, the accused, a sergeant in the Sûreté du Québec, was patrolling in order to locate a stolen vehicle, which led him to the yard of the Ste-Adèle high school during the lunch hour.

[3] The accused had no information regarding the identity of the alleged thief, regarding the driver, or regarding the circumstancesof the theft. All he knew was that the vehicle might be connected to thefts at automated teller machines. No occurrence of violence wasassociated with this investigation. [4] He passed by said vehicle as he was leaving the high school parking lot, did a U-turn and followed the vehicle to its finaldestination.

The accused noted that the driver was a young man. [5] The driver, a young man 17 years of age, dropped off two young girls in the yard of the high school and the vehicle remainedstopped, but with the engine still on. [6] At the same time, the accused unhurriedly parked his patrol vehicle so as to block any possible exit for the driver. He exited hisvehicle, drew his firearm, held it with two hands, towards the young man and downwards at a 45-degree angle. In this manner, he headedtowards the stolen vehicle while ordering the driver to raise his hands in the air.

He aimed at him when he was approximately fifteen feetfrom the vehicle, on the driver’s side. [7] The young man then revved his engine and partially complied with the police officer’s orders. When the accused aimed at him,he quickly took off with his vehicle and, simultaneously, the police officer, who believed the vehicle was charging at him, fired a firstshot in the young man’s direction, hitting him in the left elbow.

The vehicle then continued along its very short path and, when it passednear the accused, the latter fired a second shot into the victim’s neck, an injury that was fatal. [Emphasis added.] [157] This description correctly summarizes the facts. In paragraph 12 of her judgment, the judge explained that, in order to avoidredundancies, she would insert details from time to time to [translation] “provide a complete portrait of the events”.[56] [158] This is indeed what she did in a most adequate analysis of the facts.

Analysis Disclosure of the evidence [159] In the present case, the appellant had sought the disclosure of investigation reports and the personal notes of the police officersin three criminal investigations regarding the victim, as well as the intervention and follow-up file regarding the victim (from the Centreintégré de santé et de services sociaux des Laurentides) in connection with a youth sentence that had been imposed on him. [160] Like my colleague, Chamberland, J.A., I am of the view that the disclosure of the files held by the Sûreté du Québec is subjectto the regime established in O’Connor.[57] [161] The appellant, however, had no information regarding the driver’s identity or the circumstances of the vehicle’s theft.

The trialjudge therefore did not err in concluding that the appellant had not satisfied the first step of the test, which requires the accused to showthat the information is likely relevant, namely, that there “is a reasonable possibility that [it] is logically probative to an issue at trial orthe competence of a witness to testify”[58] (emphasis added). While the accused’s burden at this stage is not onerous, it mustnevertheless meet the “likely relevant” threshold: […] The “likely relevant” threshold has been described as significant, but not onerous: O’Connor, at para. 24; McNeil, at para. 29.

Thereason that the relevance threshold is “significant” is to allow the courts to act as gatekeepers, preventing “speculative, fanciful,disruptive, unmeritorious, obstructive, and time consuming” requests for production: O’Connor, at para. 24, quoting R. v. Chaplin, (SCC), [1995] 1 S.C.R. 727, at para. 32.[59] [Emphasis added.] [162] The judge, rightly so, assessed the likely relevance of the documents by referring to the specific context of the case.

Sheemphasized the fact that the appellant did not know the victim at the time of his police intervention and she concluded that thosedocuments could not be used to establish that the appellant’s subjective fear was based on the violent character of the victim who, in fact,was not armed. Next, the judge determined that the appellant’s suggestion that the documents would be relevant to establish theprobability that the victim had charged at him was conjecture. [163] In so deciding, the judge correctly applied the principles found in O’Connor.

First, it is important to remember that the trialjudge was in the best position to assess the likely relevance.[60] She considered that the events to which the documents in question relatewere not contemporaneous with the charges brought against the appellant. Furthermore, two of the investigation reports contemplated inthe appellant’s motion did not deal with violent crimes.

As for the third report, even assuming it contained elements that might show apropensity to violence on the part of the victim, they are not obviously relevant primarily because the accused knew nothing about them.In addition, evidence of a victim’s propensity for violence is circumstantial and the victim, who was unarmed, had a firearm pointed athim. Was he merely trying to elude the danger? Lastly, relevance is intimately related to the probative value that the information soughtcould have. The record in the present case included much direct evidence, namely, the eyewitnesses and the video of the second shot.

Inmy view, there is no possibility that the records sought by the appellant could have helped his defence, except by colouring the facts.The judge did not err. Assessment of the evidence [164] With all due respect, the errors alleged by the appellant cannot form the basis for intervention by this Court to enter an acquittalor even order a new trial.

First, it is important to remember that a trial judge need not individually cover all the elements of the evidence.A failure to do so is not an error of law “unless the reasons demonstrate that [a consideration of all the evidence in relation to the ultimateissue] was not done”.[61] This is clearly not the case.

[ 165 ] The errors alleged by the appellant regarding the judge’s conclusion that the victim was not charging at him are not errors. I will limit myself to the judge’s conclusion that, in fact, the appellant was not in the path of the vehicle at the time the second shot was fired. This finding of fact is supported by the video filmed by the witness J.T.-M. and is free of errors. Indeed, the accused shot the victim through the open driver’s window while the vehicle was passing next to him. The appellant stated that his two shots were consecutive, separated by the time it took to pull the trigger.

If the vehicle had been charging at him, he would have hit the victim through the windshield. Moreover, the judge clearly concluded that the use of force was excessive and unjustified in the present case. According to her, the second shot that hit the victim in the neck and that proved to be fatal was not necessary. That conclusion was open to her on the evidence. [ 166 ] The pronouncements of the Supreme Court of Canada in R. v. Lohrer [62] regarding the stringent standard governing misapprehension of the evidence are relevant here. The misapprehension must “go to the substance rather than to the detail.

It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle […] that the errors thus identified must play an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction’”. [63] [ 167 ] The Supreme Court emphasized that message the following year in R. v.

Clark , [64] particularly at paragraph 9: “[…] Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified.

And it must be shown to have affected the result”. [ 168 ] Ultimately, it seems to me that the “errors” the appellant alleges the judge committed are that she did not accept his version of the facts (with respect to, for example, the moment he aimed his weapon at the victim) on aspects that are not determining factors. Appellate courts must not substitute their assessment of the facts for that of the trial judge, particularly on matters of credibility, unless there is an error that is palpable—i.e., obvious—and overriding—i.e., that renders the verdict unreasonable.

There is no such error in the trial judge’s factual analysis and I do not consider the verdict unreasonable in light of the evidence as a whole. The expert evidence [ 169 ] As for the ground based on the trial judge’s handling of the expert evidence, I would summarize it as follows. The appellant argues that the judge erred in law by rejecting the testimony of Mr. Bruno Poulin, an expert in police intervention. He complains that she concluded, without reason, that Mr.

Poulin was biased and that his testimony was irrelevant. [ 170 ] Here is what the judge said on that matter in the judgment under appeal: [65] [ translation ] [72] The expert must not usurp the Court’s role by drawing conclusions that fall within the exclusive purview of the Court, nor must he testify in the place and stead of the accused. [73] Determining the degree of force required remains the prerogative of the Court. [74] Our Court of Appeal recently expressed its opinion on the limits to expert testimony and on what falls to the trier of facts, R. c.

Bresaw [reference omitted], unanimous judgment dated August 23, 2017. [ 171 ] The judge went on to note that, in the present case, the expert’s testimony showed an [ translation ] “astonishing and unbounded bias”. [66] [ 172 ] It is worth remembering, as our colleague Vauclair, J.A. wrote, that expert evidence [ translation ] “must not have the effect of supplanting” the trier of fact’s analysis. [67] For example, it is not up to the expert to give an opinion on the guilt or innocence of the accused, nor on the credibility of a witness.

This is referred to in the common law provinces as the “ultimate issue rule”. [68] [ 173 ] Vauclair, J.A. further noted: [ translation ] […] such [expert] evidence will be admissible only if the trier of facts is unable to draw his own conclusions. Again, the aim is to prevent the expert from usurping the jury’s functions… This danger is exacerbated by the fact that this evidence is highly impervious to cross-examination.

Moreover, the expert often testifies based on data gathered in scientific publications or through extrajudicial interviews whose reliability cannot be verified by way of cross-examination […] [69] [ 174 ] It clearly appears from the judgment under appeal that the judge was of the view that the expert, Poulin, in addition to his bias, had broken these rules.

Having first pointed out that his testimony was based on matters taught to police officers, and constituted a theoretical explanation of ethical standards, she was astonished that: [70] [ translation ] ➢ the expert gave an unequivocal opinion on the actus reus and the mens rea of the police officer and was categorical: the entire intervention was consistent with what is taught at the École nationale de police, both shots were justified and this was the only possible solution due to the threat, the imminent danger, according to the police officer’s perception; ➢ he also gave an opinion on the time of cognition in the police officer’s head, on stress as a human factor (despite the fact the accused himself said nothing about stress), that the police officer had no other options to consider in the given time frame; ➢ he calculated the time between the two shots as being thirty one-hundredths of a second, although he had no data on the first shot,

except an approximation, and he based the police officer’s appropriate response time on this more than hypothetical calculation; ➢ according to him, during such a short period of time, the police officer could not have reflected between the two shots nor repositioned himself to shoot (the video shows otherwise); ➢ the expert concluded that the police officer had fired to protect his life, that he had defended himself, and he repeated that the officer had had no other alternative; ➢ also, that on a photograph derived from the video, when the accused appears with his left hand raised near the vehicle, before the second shot, that this was a protective gesture by the police officer and that this is what is taught to police officers (the accused did not mention this either, that this is what was taught, nor did he describe this act as any type of protection); [76] Such assertions, devoid of any nuance and interspersed with assumptions in order support them, can only lead the Court to reject this expert’s conclusions on two grounds: bias and relevance. […] [80] The Court reiterates that this is not a situation in which we are dealing with an ethical justification to determine whether or not the police intervention was consistent with the rules taught to police officers. [81] The expert’s testimony might become relevant during such a hearing, but not here, not in the context we must consider. [82] In fact, it is worthwhile reading the warning that appears on the first page of the document, at the bottom, in small print: “This document was prepared for students taking a course and is a supplement to the training taught in the classroom.

The information presented in this document should not be interpreted as being a manual on procedure and should not, under any circumstances, be used for purposes other than training. Readers should not act solely based on the information it contains.” [ 175 ] It appears from the judge’s reasons that even if the content of Mr. Poulin’s testimony had been relevant, she gave it very little probative value.

Once again, absent a palpable and overriding error, which I do not see anywhere here, this conclusion merits deference because it falls within the trial judge’s exercise of her discretion. [71] Determining the reasonableness of the use of force that killed D.H.- L. did not fall within the expert’s area of expertise, but rather within the jurisdiction of the trial judge who was required to adjudicate in accordance with ss. 25 and 34 of the Criminal Code . [72] [ 176 ] Given that the trial judge did not commit any errors justifying this Court’s intervention, I would dismiss the appeal. NICOLE DUVAL HESLER, C.J.Q.