2012 QCCA 201, 2012 QCCA 201

Seide c. R. 2012 QCCA 201 COUR D’APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N° : 500-10-004007-074 (500-01-007707-067) DATE : le 2 février 2012 CORAM : LES HONORABLES ANDRÉ ROCHON, J.C.A. ALLAN R. HILTON, J.C.A. JACQUES A. LÉGER, J.C.A. STEVE HAROLD SEIDE APPELANT – Accusé c. SA MAJESTÉ LA REINE INTIMÉE – Poursuivante ARRÊT [ 1 ] L'appelant se pourvoit contre un verdict rendu le 2 novembre 2007 par un jury présidé par l'honorable Richard Wagner (Cour supérieure, district de Montréal) qui l'a déclaré coupable de meurtre au deuxième degré, de tentative de meurtre et de possession d'une arme à feu prohibée chargée à l'encontre des articles 235, 239a), 244b) et 95(2)

a) respectivement du Code criminel ; [ 2 ] Pour les motifs du juge Hilton, auxquels souscrivent les juges Rochon et Léger; LA COUR : [ 3 ] REJETTE l'appel. ANDRÉ ROCHON, J.C.A. ALLAN R. HILTON, J.C.A. JACQUES A. LÉGER, J.C.A. Me Francis Le Borgne RABY DUBÉ ET LE BORGNE Pour l'appelant Me Benoit Lauzon AVOCAT AUX POURSUITES CRIMINELLES ET PÉNALES Pour l'intimée Date d’audience : le 5 octobre 2011

REASONS OF HILTON, J.A.

I INTRODUCTION [ 4 ] Steve Harold Seide pleaded guilty in the presence of a Superior Court jury to the offences of discharging a firearm with intent to endanger the life of Elie Chamai [1] and being in possession of a restricted firearm with ammunition. [2] At the conclusion of his trial, the jury found him guilty of the second-degree murder of Kostas Pousoulidis, [3] the attempted murder of Louis Corriveau-Lachaine [4] and a second count of discharging a firearm with intent to endanger the life of another person, Atallah Marwan. [ 5 ] His appeal raises a variety of issues relating to the trial judge's instructions as he delivered them, and errors the trial judge allegedly made by failing to open certain defences for the jury's consideration.

In his notice of appeal, Mr. Seide solicited a judgment setting aside the three verdicts and ordering a new trial. In his factum, however, he seeks to have a verdict of manslaughter substituted for the second-degree murder conviction, or alternatively, to have a new trial ordered on the murder count. He continues to seek a new trial on the attempted murder count, but has abandoned his appeal of the remaining count of discharging a firearm with intent to endanger someone's life. II THE FACTS [ 6 ] The precise sequence of events that led to the charges against Mr.

Seide cannot be easily recounted because of conflicting evidence relating to some aspects of the case. I will therefore begin with an overview of the facts, the accuracy of which is acknowledged, followed by an enumeration of the conflicts in the evidence. These conflicts relate principally to the defence of self-defence Mr. Seide asserted at trial, as well as those that his counsel in appeal argues the trial judge should have instructed the jury to consider.

A) Overview [ 7 ] In the early morning hours of May 14, 2006, Mr. Seide and some friends were in a bar on St. Laurent Boulevard, at which time he was carrying a Ruger .357 Magnum revolver in one of his pant pockets. Not long before closing at 3:00am, a scuffle developed inside the bar without any punches being exchanged. The doormen forced the customers to exit the premises onto the street, where many of them assembled. [ 8 ] Shortly thereafter, Mr. Pousoulidis and Mr. Seide found themselves in close proximity to each other. As the scuffle continued, Mr.

Seide took the revolver from his pocket and fired a single shot at point-blank range at Mr. Pousoulidis. The bullet struck him in the chest and caused his death. [5] The close proximity of Mr. Seide when he fired his weapon at Mr. Pousoulidis is reflected in the fact that the latter's DNA was identified on the gun barrel used in the shooting. [ 9 ] Within seconds, Mr. Seide then fired three shots in the direction of Mr. Corriveau-Lachaine, striking him in the lungs, abdomen and arm, but without killing him. In the midst of quickly fleeing the scene on foot, he also fired on separate occasions at Mr.

Chamai and then Mr. Marwan, both of whom were chasing him. [ 10 ] Mr. Seide eventually disappeared from their view. He later met up with the friends who had accompanied him to the bar, and returned with them by car to Laval. He says they remarked that he had a large bump on his forehead with facial swelling. He also claimed to have been in physical pain as the result of what had transpired outside the bar. [ 11 ] After having been observed by police surveillance in the following days, Mr. Seide was arrested and charged with the offences for which he either pleaded guilty or was found guilty.

B) Conflicts in the evidence (

i) Intoxication [ 12 ] During his time in the bar, Mr. Seide testified that he consumed two beers and four double cognacs. He described his demeanour as being unaffected by his consumption. He considered that he was no different in terms of his demeanour with respect to the events that transpired inside and outside the bar. Andy Cherubin testified that one of the members of the group, Steve Poissant, had purchased a bottle of cognac and a bottle of beer, and that another member of the group of friends had purchased alcohol. Another witness, Majid Amara, testified that Mr.

Seide appeared to be drunk. (ii) Possession of the firearm [ 13 ] Mr. Seide testified that he was holding the revolver used in the shootings at the request of his friend, Steve Poissant, who did not want it to appear evident in the particular style of pants he was wearing that evening. [6] Mr. Seide did not know why Mr. Poissant was carrying a weapon, nor what he did for a living. He also claimed that until then, he had never held a firearm. [ 14 ] On this latter subject, however, he was contradicted by another defence witness, Andy Cherubin, who had been Mr. Seide's friend for several years.

He testified that he had seen him holding Mr. Poissant's firearm on many occasions. Mr. Seide also acknowledged when he was cross-examined that as a minor, he had been found guilty in 1998 of armed assault. When re-examined,

however, he testified that the weapon was actually a plastic toy gun. (iii) Mr. Seide's position when he fired [ 15 ] Mr. Seide testified that he was surrounded by others when he fired at Mr. Pousoulidis from a crouched position. Considering their respective heights, this means that the bullet that killed Mr. Pousoulidis would have traveled on an upward trajectory. The autopsy report, however, establishes conclusively that the trajectory of the bullet was at a downward angle. Moreover, all of the witnesses whose testimony is referred to in the following paragraphs state either that:

a) Mr. Seide was not surrounded by others when he fired; or,

b) that he was standing when he did so. (iv) Events outside the bar before the shooting [ 16 ] There is also some controversy about what actually went on outside the bar after the customers had exited the premises but before the shooting took place. [ 17 ] While six of the witnesses who testified agreed that the doormen forced everyone to leave the bar, all of them affirmed that there was shouting and shoving outside the bar, and some of them, as detailed hereafter, testified to seeing punches being thrown. [ 18 ] Mr.

Seide, however, testified that he was involved in a fistfight involving at least three white men and another black man. The remaining few witnesses testified to exchanges of punches. One of them, however, said he did not see Mr. Seide either receive or throw a punch. Another witness who was a friend of Mr. Pousoulidis and is a friend of Mr. Corriveau-Lachaine saw another participant hit by a black man. Andy Cherubin said he saw a black man hit a white man, and then three white men attack that particular assailant. (

v) Events shortly before the shooting [ 19 ] The most conflicting testimony relates to what transpired shortly before Mr. Seide discharged the firearm at Mr. Pousoulidis and Mr. Corriveau-Lachaine. In light of the defence of self-defence put forward at trial and the other defences that it is now argued should have been opened for the jury to consider, it is useful to describe the divergent versions in more detail. [ 20 ] According to Elie Chamai, on exiting the bar, a black man struck Majid Armara, who fell to the ground. Mr.

Pousoulidis' brother George tried to help him up, whereupon his brother approached him, and Mr. Seide fired the shot that killed him. [ 21 ] Majid Amara confirmed that he was struck by a black man, Teddy Hilaire. He felt that the reason he had been struck was because inside the bar, he had intervened to separate Mr. Hilaire from another person with whom he had been bickering. Pierre Allack, a friend of Mr. Amara, came to his assistance when he had been punched outside the bar. After having been struck, Mr.

Amara observed that George Pousoulidis had fallen and that his brother Kosta came to his assistance, pushing away everyone around his brother so that he would not be trampled. In so doing, he pushed Mr. Seide, who took offence at the gesture and fired on him. [ 22 ] According to Abou Nahoul Khali, George Pousoulidis tripped while exiting the bar and fell at the same time as the person in front of him. He then went towards his brother Kosta, who was leaning against a car. As George pulled Kosta towards him, Mr.

Seide took out his firearm and fired at Kosta. [ 23 ] George Pousoulidis testified that Kosta followed him as he exited the bar, and confirmed that he fell when doing so, as did the person in front of him, who he helped up off the ground. He then saw Kosta trying to separate two persons who were mixing it up, one of whom was Pierre Allack. When this happened, he pushed back Teddy Hilaire who was trying to become involved in the dispute between the two persons Kosta was attempting to separate. It was then that Mr.

Seide shot Kosta. [ 24 ] The testimony of Marwan Atalah was to the effect that Kosta was leaning against a car, in the midst of trying to stop something. He was arguing with Mr. Seide. They had their hands on each other and were pushing. Mr. Seide dropped his hands to remove something from his trousers, and then fired at Kosta. [ 25 ] Mr. Corriveau-Lachaine confirmed that there was a lot of shoving outside the bar, and he was engaged in trying to separate people. Mr. Seide was not amongst those he was trying to separate. He had no previous contact with Mr.

Seide that evening prior to being shot by him. [ 26 ] Dimitri Medimenos saw Kosta trying to return to the bar after exiting with the others, but was pushed back by others coming out in the direction of a car, where he was shot. [ 27 ] As I mentioned earlier, Andy Cherubin was a witness to these events. He saw Teddy Hilaire strike a white man, and three other white men then attack Teddy Hilaire, who fell to the ground. Mr. Seide came to the latter's assistance, whereupon the three white men went after him. He was pinned against the car.

After he fired the first shot that killed Kosta, no one struck him any more. (vi) Mr. Seide's physical status after the shooting [ 28 ] With respect to the injuries Mr. Seide says he suffered in the altercation outside the bar, the only witness who claims to have seen him being struck with resulting facial swelling and a bump on his forehead is his friend Andy Cherubin. Two police officers tasked with the surveillance of Mr. Seide in the days following the shooting saw no evidence of a facial injury, nor do surveillance photos of him taken four days later disclose any such injury.

Finally in this respect, a police officer present when Mr. Seide was arrested ten days after the shooting observed nothing abnormal about his face. (vii) The reason Mr. Seide decided to fire

[ 29 ] Mr. Seide says that he decided to fire the weapon at Kosta and Mr. Corriveau-Lachaine because he panicked when he heard the click of a gun-trigger being pulled. He says he recognized the sound from hearing it on television, not because he had ever fired a gun. No other witness, however, saw a gun other than the one Mr. Seide used to kill Kosta and shoot at Mr. Corriveau-Lachaine, or heard the sound of a trigger being pulled or a gun being discharged. No other weapon was found at the scene after the police arrived. III GROUNDS OF APPEAL [ 30 ] Mr. Seide's grounds of appeal are to the following effect:

(1) The trial judge's instructions to the jury on a verdict of manslaughter were inadequate;

(2) The trial judge's instructions on the defence of self-defence were inadequate;

(3) The trial judge failed to warn the jury of the prohibition against inferring propensity to commit the offences with which he was charged based on his prior convictions. [ 31 ] I will deal with each of these grounds of appeal in turn. IV ANALYSIS AND DISCUSSION

(1) The trial judge's instructions to the jury on a possible verdict of manslaughter were inadequate [ 32 ] Mr. Seide advances a three-pronged attack in support of this ground of appeal, each of which I will consider separately. I note at the outset, however, that his trial counsel raised none of them before the trial judge, which is a factor that can be taken into account in assessing the weight to give to them. [7]

A) Inappropriate limitation on a possible verdict of manslaughter [ 33 ] This submission argues that the trial judge inadequately instructed the jury on the necessity to establish the specific intent of Mr. Seide to find him guilty of second-degree murder. The argument goes that the trial judge improperly related it to the defence of self-defence set out in

section 37 Cr.C. and its unavailability if the use of force Mr. Seide employed was excessive. That provision reads as follows: 37.

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

(2) Nothing in this

section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. 37.

(1) Toute personne est fondée à employer la force pour se défendre d’une attaque, ou pour en défendre toute personne placée sous sa protection, si elle n’a recours qu’à la force nécessaire pour prévenir l’attaque ou sa répétition.

(2) Le présent

article n’a pas pour effet de justifier le fait d’infliger volontairement un mal ou dommage qui est excessif, eu égard à la nature de l’attaque que la force employée avait pour but de prévenir. [ 34 ] For its part, the Crown contends that any initial imprecision in the trial judge's instructions was properly clarified in response to comments from Crown counsel. [ 35 ] Here is what the trial judge first said: Qu'en est-il si vous jugez, au-delà du doute raisonnable, que l'accusé a employé une force qui a été au-delà de ce qui était nécessaire pour prévenir l'attaque ou sa répétition?

S'ouvre alors un autre verdict potentiel, soit celui d'homicide involontaire coupable. […] Dans ce sens, l'emploi d'une force au-delà de ce qui est nécessaire pour prévenir l'attaque ou sa répétition constitue un acte objectivement dangereux qui justifie un verdict d'homicide involontaire coupable. La légitime défense est alors écartée. Si vous croyez que l'accusé n'a pas eu l'intention de commettre le meurtre reproché ou si vous avez un doute raisonnable à ce sujet, vous devez le déclarer coupable d'homicide involontaire coupable, ce qui constitue un autre verdict possible.

Ce dernier verdict signifie que vous êtes convaincus, hors de tout doute raisonnable, que l'accusé a employé une force au-delà de ce qui était nécessaire pour repousser une attaque.

Je vous rappelle que pour rendre un verdict d'homicide involontaire coupable, vous devez conclure d'abord, et ce, au-delà du doute raisonnable, à l'emploi d'une force qui est celle… qui excède ce qui est nécessaire pour repousser l'attaque, et aussi avoir également écarté la défense de légitime défense. [ 36 ] Subsequent to Crown counsel's suggested clarification, the trial judge then specified that if the jury did not accept the defence of self defence, the option for a verdict of manslaughter was nevertheless open:

Et là, si vous écartez la légitime défense, il va… il ira… il y aura sur votre plateau deux (2) possibilités. La première (1 e ), c'est le meurtre au deuxième (2

e) degré, mais là, il faut que vous regardiez s'il y a une intention coupable parce que l'intention est nécessaire pour le meurtre. Et s'il n'y a pas d'intention coupable, effectivement, il y a l'homicide involontaire qui est… qui est ouvert. Et l'homicide involontaire coupable n'est pas nécessairement lié au fait que vous veniez à la conclusion que l'article trente-sept (37) n'est pas rempli parce qu'il y a une force excessive. J'utilisais ça comme étant un exemple d'un acte illégal, mais c'est pas simplement réservé à ça. Alors, vous regard… vous regardez les… les ingrédients du meurtre deuxième (2

e) degré, vous regardez s'il y a une… s'il y a légitime défense. S'il y a pas de légitime défense, trente-quatre (34.2), tente-sept (37), vous regardez si effectivement… vous vous assurez que les ingrédients du meurtre deuxième (2

e) degré existent, soit l'intention coupable, et si l'intention n'est pas là, vous ouvrez l'homicide involontaire coupable. [Transcribed as written, emphasis added] [ 37 ] In my opinion, the trial judge adequately made the point in his instructions, albeit not in as fulsome a manner as Mr. Seide's appellate counsel would have preferred. The jury could not have been under any misapprehension of the necessary element of specific intent to return a guilty verdict for murder, and that if it concluded that the Crown had not established that degree of intent, it should acquit Mr.

Seide of murder and instead find him guilty of manslaughter. [ 38 ] This aspect of the ground of appeal therefore fails.

B) Absence of an instruction on the defence of provocation (section 232 Cr.C .) [ 39 ] Had this defence been available, Mr. Seide contends, the jury could have found him guilty of manslaughter instead of second-degree murder pursuant to subsection 232(1) Cr.C . In order for a possible verdict to be opened for a jury's consideration, however, there has to be sufficient foundational evidence that can give rise to its application. [8] [ 40 ] Provocation is defined in subsections 232(2) and (3) Cr.C . as follows: 232.

(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this

section if the accused acted on it on the sudden and before there was time for his passion to cool.

(3) For the purposes of this section, the questions (

a) whether a particular wrongful act or insult amounted to provocation, and (

b) whether the accused was de​prived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being. 232.

(2) Une action injuste ou une insulte de telle nature qu’elle suffise à priver une personne ordinaire du pouvoir de se maîtriser, est une provocation pour l’application du présent article, si l’accusé a agi sous l’impulsion du moment et avant d’avoir eu le temps de reprendre son sang- froid.

(3) Pour l’application du présent article, les questions de savoir :

a) si une action injuste ou une insulte déterminée équivalait à une provocation;

b) si l’accusé a été privé du pouvoir de se maîtriser par la provocation qu’il allègue avoir reçue, sont des questions de fait, mais nul n’est censé avoir provoqué un autre individu en faisant quelque chose qu’il avait un droit légal de faire, ou en faisant une chose que l’accusé l’a incité à faire afin de fournir à l’accusé une excuse pour causer la mort ou des lésions corporelles à un être humain. [ 41 ] Such foundational evidence cannot be merely "of a tenuous, trifling, insignificant or manifestly unsubstantive nature; there must be evidence in the record upon which a properly instructed jury, acting judicially, could entertain a reasonable doubt as to the defence that has been raised", to use the words of Fish, J. in R. v.

Fontaine . [9] [ 42 ] The criteria a trial judge must consider before leaving the defence of provocation open to a jury were described in much the same way by Cory, J. on behalf of the majority and Major, J. for the minority in R. v. Thibert . [10]

Cory, J.: 6 That is to say that before the defence of provocation is left to the jury, the trial judge must be satisfied (

a) that there is someevidence to suggest that the particular wrongful act or insult alleged by the accused would have caused an ordinary person to be deprivedof self-control and (

b) that there is some evidence showing that the accused was actually deprived of his or her self-control by that act orinsult. This threshold test can be readily met, so long as there is some evidence that the objective and subjective elements may besatisfied. If there is, the defence must then be left with the jury. [Emphasis in the original] Major, J: 59 In Parnerkar v. The Queen, (SCC), [1974] S.C.R. 449, this Court, discussing the provocation defence, set outthe test for determining when the defence should be left with the jury.

Fauteux C.J., speaking for the majority said, at p. 454: If, then, the record is denuded of any evidence potentially enabling a reasonable jury acting judicially to find a wrongful act or insult ofthe nature and effect set forth in s. 203(3)(

a) and (b) [now s. 232(3)(

a) and (b)], it is then, as a matter of law, within the area exclusivelyreserved to the trial judge to so decide and his duty to refrain from putting the defence of provocation to the jury. 60 In R. v. Squire, (SCC), [1977] 2 S.C.R. 13, this Court dealt with the objective branch of the provocation defence,found now in s. 232(3)(

a) of the Criminal Code.

Spence J., for the Court, after reviewing the evidence, stated, at p. 21: As I have said, it is the duty of this Court to come to a decision whether those circumstances amount to any evidence that a reasonablejury acting judicially could find a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control (s. 215(2))[now s. 232(2)], and I am strongly of the view, with great respect to the opinion expressed by Martin J.A., that no jury acting judiciallycould come to such a conclusion. 61 Therefore, if the record is without evidence enabling a reasonable jury acting judicially to find a wrongful act or insult sufficientto deprive an ordinary person of the power of self-control, the objective branch of the threshold test for provocation has not been met andthe defence should not be left with the jury. [43] With those criteria in mind, can it be said that there was sufficient foundational evidence to put the defence to the jury in thiscase?

In my opinion there was not. The mere fact that Mr. Pousoulidis may have pushed some of the bar's customers as they left thepremises, and may have been involved in physical contact with them, is not enough to create, either objectively or subjectively, areasonable belief that Mr. Seide's subsequent shooting of him was the result of lack of self-control that deprived him of his ability toreason. [44] Moreover, and of greater significance, there was nothing in Mr. Seide's testimony that would suggest that he acted as he didfor this reason.

On the contrary, he testified that he fired because, having heard the sound of a gun-trigger click, he felt his life wasthreatened and responded accordingly. [45] The trial judge acted appropriately in not leaving this defence with the jury, despite the absence of a request that he do so fromMr. Seide's trial counsel. On the same basis, had such a request been made, the trial judge would have been right to refuse to put it to thejury, as it lacked an air of reality. [46] In this respect, the circumstances in this case resemble those described by McIntyre, J. for the majority in Olbey v.

TheQueen,[11] a case in which the Supreme Court of Canada held that a trial judge had erred in allowing a defence of provocation to go tothe jury: It will be recalled that the appellant did not raise the defence of provocation at trial but relied on self-defence. It may be observedhere that at no time did the appellant say that he had been provoked into violent action by the words and conduct of the deceased. In fact,his description of events goes far to negate any suggestion of provocation.

His evidence reveals an attack, described clearly and withsome detail, to which he reacted, not on the sudden, but by defending himself. When, according to his evidence, he saw the deceased puthis hand inside his sweater, he considered that the deceased was reaching for a gun and, in fear of his life, he shot and killed him. Thisdescribes a calculated and rational series of defensive acts, not a sudden reaction in the heat of passion. Nevertheless, the trial judge andthe Court of Appeal considered there was some evidence of provocation which required the putting of that charge to the jury.

I have readthe evidence with care and find it difficult to reach a conclusion that there was any evidence of a wrongful act or insult of such nature asto be sufficient to deprive an ordinary person of the power of self-control. Further, I was unable to find any evidence that the accusedacted on the sudden before his passion cooled. […][12] [Emphasis added] [47] Finally in this regard, as the Crown argued in appeal, the decision of Mr.

Seide's trial counsel not to urge the trial judge to putthe defence of provocation to the jury could well have been the result of a perfectly valid strategic consideration to have it focus itsattention on the defence of self-defence. There was, after all, some evidence that the jury could assess in support of such a defence.Adding provocation as an alternate theory that would have required the jury to ignore Mr. Seide's testimony as to the reason he fired hisweapon as he did.

To do so, in effect, could well clutter-up the jury's consideration of self-defence, and would have had the additionaldisadvantage of alerting the jury to Mr. Seide's lack of credibility.

C) Absence of a rolled-up instruction on diminished specific intent to commit murder. [48] Mr. Seide contends that the trial judge was bound to deliver what is commonly referred to as a rolled up instruction.[13] Itsbasis is that even if the defences of self-defence, provocation and intoxication may not succeed individually, taken together they mayshow an alteration in an accused's intention.[14] In support of this assertion, he argues that there was evidence capable of supporting each

of these defences. [ 49 ] I have already concluded that such was not the case with the defence of provocation, and I am of a similar mind as it relates to an unasserted defence based on intoxication. [ 50 ] Although there was inconsistent evidence of the extent of Mr. Seide's consumption that evening, there was no evidence apart from his own as to the effect that consumption had on him. Here is what he said: Q. Pourriez-vous indiquer aux membres du Jury de quelle façon… comment vous vous sentez, à ce moment-là, physiquement? R. Normalement. Q. Normalement? R.

Bien, normalement, c'est sûr, regarde, j'ai de l'alcool dans le sang, tu sais, je ne suis pas comme là, mais pas vraiment, tu sais, à part de l'odeur, dans le fond, vous pouvez prendre, tu sais, si vous êtes proche de moi, là, il n'y a pas vraiment de différence, comme telle, là. [ 51 ] He thus denied that the alcohol had any impact on his decision-making process. Nor was there any expert evidence that, given the extent of his consumption and the timeframe within which it occurred, someone of Mr.

Seide's considerable height and weight [15] would have his judgment or brain function altered to any degree. [ 52 ] If anything, the evidence would suggest that the effect of Mr. Seide's consumption that evening fell into the category of what Bastarache, J., for the majority in R. v.

Daley , [16] described as "mild", namely, the lowest of the three degrees of intoxication, that is, an "alcohol-induced relaxation of both inhibitions and socially acceptable behaviour… [that] has never been accepted as a factor or excuse in determining whether the accused possessed the requisite mens rea ." [17] [ 53 ] Therefore, I cannot see how the trial judge could have allowed a defence of intoxication to go to the jury, even if he had been asked to do so. In this respect, it is worth noting that Mr.

Seide's trial counsel waived this defence during the conference between counsel and the trial judge that preceded oral argument, and did not rely on it during oral argument to explain his client's conduct. [ 54 ] Mr. Seide's argument in favour of a rolled-up charge proceeds on the assumption that the trial judge should have instructed the jury on provocation and intoxication. I have concluded that these defences were unavailable to him as a matter of law. The trial judge was therefore under no duty to give them any residual effect by treating them cumulatively, along with self-defence, in a rolled-up charge.

I do not see how the elements of a defence that have been affirmatively excluded because they are unavailable as a matter of law or, as in this case, would have been properly excluded had the subject been raised before the trial judge, can be resurrected in a separate direction to the jury. [ 55 ] That being said, it is not without interest that in the course of his instructions relating to the Crown's burden to prove the specific intent of Mr.

Seide beyond a reasonable doubt, the trial judge said this: […] Vous devez considérer toutes les circonstances entourant cet événement pour décider si, à la lumière de l'ensemble de la preuve, si la Couronne a prouvé au-delà du doute raisonnable que l'accusé a eu, en fait, l'intention de causer la mort de Monsieur Pousoulidis. Vous devez considérer tous les facteurs pertinents à l'état d'esprit de l'accusé, en considérer l'effet cumulatif pour déterminer l'existence ou non de cette intention. [ 56 ] Overall, I would reject these three arguments and accordingly this ground of appeal.

(2) The trial judge's instructions on the defence of self-defence were inadequate [ 57 ] Mr. Seide's reproach addressed to the trial judge relates to answers he gave to two questions from the jury in the second day of their deliberations. These questions were as follows: 1 re question : Si nous adhérons à la thèse de la légitime défense, est-il acquitté des trois (3) chefs d'accusation? 2 e question : Doit-on traiter de la thèse de légitime défense de façon séparée par chef d'accusation? [Transcribed as written] [ 58 ] The trial judge discussed the answers that appear below with both Crown and defence counsel.

There was no disagreement as to what he would say in answer to them. They were: First question […] pour les deux (2) premiers chefs, [18] oui, mais l'acquittement n'est pas une option sur le troisième chef. [19] Second question Alors vous savez, c'est difficile pour moi de connaître le contexte dans lequel cette question est émise par vous, mais je voudrais simplement vous réitérer le fait que, comme je pense l'avoir dit, mais je vais le redire, dans l'examen de la preuve, il faut en arriver avec votre verdict.

Vous devez regarder, pour chaque chef d'accusation, les ingrédients essentiels que la Couronne doit prouver hors de tout doute raisonnable. En parallèle avec cet examen-là, vous regardez aussi si la légitime défense est applicable, selon les critères que je vous ai donnés. Et là, vous concluez. Alors vous pouvez faire l'exercice pour chaque chef… chaque chef d'accusation. Est-ce que ça devrait apporter une différence si vous le faites globalement ou par chef d'accusation? Ça, c'est quelque chose sur lequel je peux pas

commenter, mais normalement, il devrait y avoir une… il devrait y avoir une cohérence entre vos conclusions sur le premier et sur le deuxième chef. [Emphasis added] [ 59 ] These answers did not elicit any comments from counsel after they had been delivered. Nor did they give rise to any further questions from the jury, despite an invitation from the trial judge to its members to ask additional questions if necessary. The jury's deliberations continued for a further day and a half before it returned with a verdict. [ 60 ] Despite his trial counsel's acquiescence to the answers, Mr.

Seide now complains that taken together, they precluded the jury from applying the defence of self-defence to only one of the charges. In that respect, he argues that the jury could have decided that the evidence of self-defence gave rise to an acquittal on the charge of second-degree murder, while nevertheless finding him guilty of attempted murder. In that scenario, the jury would have concluded that Mr. Pousoulidis was the instigator of the altercation with him that led to his being shot and killed, while Mr.

Corriveau-Lachaine was a stranger to it. [ 61 ] In my view, the answers the trial judge gave could have led the jury to do precisely what Mr. Seide says they precluded it from doing, on the condition of course that they gave credence to his evidence as to why and how he discharged the firearm at Mr. Pousoulidis. The trial judge properly left it to them as to whether they considered the defence globally or separately to each of the two offences to which it may have been applied.

It was not for him to interfere in their deliberative process in that respect. [ 62 ] The jury surely would have understood that the trial judge's reference to coherence between the verdicts on the second-degree murder and attempted murder counts meant they could not convict Mr. Seide of second-degree murder but acquit him of attempted murder based on self-defence in light of Mr. Corriveau-Lachaine's limited involvement at the scene. Although the trial judge properly left the defence of self-defence on both counts to the jury, it is hardly surprising that the jury rejected it.

One need only consider the implausibility of Mr. Seide's testimony explaining his conduct that evening, especially as it relates to his being in a crouched position as he fired at Mr. Pousoulidis when the autopsy report conclusively establishes the contrary. [ 63 ] Appellate courts should not become involved in parsing sentences in a trial judge's instructions to determine if they could in theory give rise to a meaning other than the one that appears most obvious. That is, in effect, what Mr.

Seide is inviting the Court to do, and it is an invitation I respectfully decline. [ 64 ] This ground of appeal therefore fails.

(3) The trial judge failed to warn the jury of the prohibition against inferring propensity to commit the offences with which he was charged based on his prior convictions, thereby also undermining his credibility as a witness. [ 65 ] When he was cross-examined, Mr. Seide acknowledged a criminal record consisting of the armed assault as a juvenile that I have already mentioned, plus theft under $5,000 in 2001 and obstruction of justice in 2004. Prior to his examination in chief, his trial counsel had not presented a Corbett [20] application.

The effect of such an application, if it had been presented and granted, would have precluded the Crown from cross-examining Mr. Seide on his record with a view to undermining his credibility as a witness. [ 66 ] Similarly, two other defence witnesses, Andy Cherubin and Majid Amara, had their criminal records disclosed when they testified to allow the jury to consider them in assessing their credibility. [ 67 ] In a somewhat related context, as I have already mentioned, prior to the commencement of the trial and in the presence of the jury, Mr.

Seide pleaded guilty to the offences of a discharging a firearm with attempt to injure Elie Chamai and possession of a restricted firearm with ammunition. [ 68 ] With respect to the guilty plea, the trial judge said this to the jury during the trial: […] vous avez entendu hier… avant hier l'accusé qui a volontairement plaidé coupable à deux accusations qui faisaient l'objet des… de la poursuite et il a plaidé non coupable aux trois chefs d'accusation qui sont encore devant vous.

Les deux autres ne sont plus devant vous et je voulais simplement vous souligner que vous n'avez pas à déduire quoi que ce soit ou à conclure quoi que ce soit par le fait que, volontairement, l'accusé aurait pu plaider coupable à deux chefs d'accusation qui ne sont plus devant vous. [Emphasis added] [ 69 ] In speaking of the relationship between the criminal records of Messrs. Cherubin and Amara and their credibility, the trial judge instructed the jurors as follows: […] une personne peut avoir des antécédents judiciaires parce qu'elle a déjà été déclarée coupable d'un acte criminel.

Ce n'est pas en soi une raison pour douter nécessairement de sa crédibilité, mais c'est un élément dont on peut tenir compte dans l'évaluation de son témoignage. Une preuve d'antécédents judiciaires vise à affecter la crédibilité d'un témoin. Les condamnations passées peuvent mais ne doivent nécessairement affecter la crédibilité d'un témoin. Cette preuve ne signifie pas nécessairement en soi que le témoin n'énonce que des faussetés. [ 70 ] At the Crown's request, he added this comment directly related to Mr. Seide: […] je vous avais invités à la prudence en raison des antécédents judiciaires de deux (2) témoins.

Le principe s'applique également en ce qui concerne le témoignage de l'accusé. Ce n'est pas parce que quelqu'un a un… des antécé…des antécédents judiciaires que, pour autant, il ne dit pas la vérité; il s'agit d'un élément parmi d'autres que vous pourrez apprécier dans votre sagesse. [Emphasis added]

[ 71 ] Mr. Seide now argues that the trial judge had to go further than limiting his instructions to credibility. He says that he also had to mention specifically that his criminal record was not a basis to infer that because he had already committed criminal offences, he must have committed the three remaining offences with which he had been charged. [ 72 ] In effect, this is what the trial judge said to the jury in the extract I have quoted at paragraph [70].

It is true, however, that the trial judge could have been more thorough in his explanation to the jury during his instructions and related the prior convictions to the issue of propensity. An accused, however, is entitled to adequate instructions, not ones that are flawless. That requisite standard has been satisfied here such that the Court's intervention is not justified. [ 73 ] That being said, as the Crown correctly observes, Mr. Seide's trial counsel did not request the trial judge to adjust his instructions to include a reference to propensity.

Making much of this, however, might well have reminded the jury of the testimony of Mr. Cherubin that he had often seen Mr. Seide in possession of a firearm, and that Mr. Seide had once been found guilty of an offence involving a firearm. The effect of doing so may well have been to undermine Mr. Seide's credibility in the eyes of the jury, since he had testified that he had never even held a firearm prior to shooting and killing Mr. Pousoulidis. [ 74 ] The decision of Mr. Seide's trial counsel not to raise the issue may thus have been the result of an understandable strategic decision on his part.

In such circumstances, it is not the role of an appellate court to second-guess or revisit such decisions. [ 75 ] In any event, I do not consider the omission, assuming it to have been an error, to have had a potentially determinative effect. [ 76 ] The circumstances here recall those examined by the Court in Ranwez v.

R. , a case in which a trial judge had dismissed a Corbett application and thus allowed the Crown to cross-examine an accused charged with second-degree murder on his extensive criminal record. [21] Although the Court considered that the trial judge should have instructed the jury on the issue of propensity, it held that his failure to do so was not fatal since the accused's prior offences were unrelated to the offence with which he was charged. [ 77 ] In this respect, the comments of Dufresne, J.A. in Ranwez are apposite: [44] […] (L)e fait d'omettre d'indiquer expressément au jury que les antécédents judiciaires ne doivent pas servir à établir une propension au crime ne constitue pas nécessairement une erreur fatale.

La Cour s'est d'ailleurs déjà prononcée sur un moyen semblable dans l'arrêt R. c.

Lemay , J.E. 99-984 : […] [45] Pour les diverses raisons mentionnées ci dessus, dont notamment l'absence d'antécédents similaires au crime dont il était accusé et le fait que dans ses directives, le juge indiquait clairement au jury que d'avoir été trouvé coupable dans le passé d'actes criminels n'est pas en soi une raison pour douter nécessairement de la crédibilité de l'accusé, mais plutôt un élément à tenir compte en évaluant son témoignage, font en sorte d'écarter le risque que le jury puisse avoir considéré les antécédents de l'accusé comme établissant une propension à commettre le crime dont il était accusé. […] [46] Bien que les directives du juge eussent pu être plus détaillées sur l’utilisation limitée que le jury pouvait faire des antécédents judiciaires de l’accusé, j'estime, ici aussi, que ces directives, considérées dans leur ensemble, étaient suffisantes, et que, vu toutes les circonstances, l'on ne peut raisonnablement prétendre que le jury a pu conclure que ces antécédents pouvaient constituer la preuve de la propension de l'appelant à commettre un homicide coupable.

Il n'y a donc aucun préjudice en l'espèce. [ 78 ] So it is with the prior criminal convictions of Mr. Seide. The offences of theft under $5,000 and obstruction of justice for which he was found guilty as an adult have no bearing on charges of second-degree murder, attempted murder and discharging a firearm with intend to injure someone. That of armed assault as a juvenile in 1998 has only a tenuous connection, apart from being remote in time from the occurrence in 2006 of the three offences for which he was being tried.

I note as well that in Ranwez , the fact that the accused's fifty or so prior convictions included crimes of violence [22] was considered unlikely to form the basis of a belief in the minds of those jurors that he was the kind of person who would commit culpable homicide. [ 79 ] Mr. Seide's guilty plea in the presence of the jury to two of the five offences with which he had been charged could well have been a strategic decision to show the jury that he was prepared to accept responsibility for what he acknowledged as his wrongdoing, while steadfastly maintaining his innocence for the other charges. Mr.

Seide could have entered his guilty plea outside the presence of the jury, but chose otherwise. It is surely too late to complain of that decision in appeal. In any event, as a Corbett application was not made on his behalf, the fact of his guilty plea to the two offences would have been brought to the jury's attention in the same way as the jury learned of his other convictions, even if it had been entered before the trial judge but outside the presence of the jury. [ 80 ] This ground of appeal also fails. V CONCLUSION [ 81 ] In my opinion Mr.

Seide was properly convicted of the three offences for which he was tried. He has not demonstrated that the trial judge committed any reversible error that would warrant the Court substituting a verdict of manslaughter for that of second-degree murder, or ordering a new trial on either that count or the attempted murder count for which the jury found him guilty. I would accordingly dismiss the appeal. ALLAN R. HILTON, J.A.